ENGLISH v. KAPLAN et al

Filing 76

ORDER that Plaintiff will show cause why the Complaint should not be dismissed without prejudice to seek relief before the proper tribunal for the reasons address above, etc It is further Ordered that Plaintiff' motion [51, 72] are hereby ADMINISTRATIVELY TERMINATED without prejudice and that Plaintiff's Motion 58 is hereby ADMINISTRATIVELY TERMINATED without prejudice, etc. Signed by Judge Claire C. Cecchi on 10/3/2018. (JB, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARILYNN ENGLISH,

Civil Action No.: 18-1617 (CCC)

Plaintiff,
ORDER
V.

AflORNEY DAVID KAPLAN, et al.,
Defendants.

IT APPEARING THAT:
1. On February 6, 2018, pro se Plaintiff instituted the within action seeking to recover
damages stemming from an “August 2009” lawsuit she alleges was “fraudulently”
instituted by “Attorney David Kaplan on behalf of his client, Shauyn Copeland.”
(ECF No. 1 (“Compi.”) at 1) (citing Civ. Action No. 09-4675)).

As further

discussed below, Plaintiff has been involved in multiple actions relating to the
subject mortgage transaction. In this action, Plaintiff explains that “[t]he purpose
of this lawsuit was [sic] to stop Ms. Copeland’s foreclosure after her Bankruptcy
Action failed to do so.” (Id.).

Additionally, Plaintiff explains that “[d]ue to

[Plaintiffs] loss of a Surety Bond and loss of income due to the [alleged] fraud and
other charges against [her], Plaintiff filed a State Court Complaint for fraud against
the parties in the initial lawsuit.” (Id.). Plaintiff further remarks that for all the
reasons set forth in her Complaint, “all Judges ruled incorrectly based on bias,
prejudice and incorrect ‘facts’ (a/k/a misrepresentations) by Defendants.” (Id.). As

such, Plaintiff brought this Complaint asserting the following causes of action:
Counts I-XI

—

Violations of the Racketeer Influenced and Corrupt Organizations

Act (“RICO”) by various Defendants; and Counts XII-XIV “Aiding and Abetting,
—

Violations of the Constitution, the Due Process Clause and Violation of 42 U.S.C

§ 1983” by various Defendants. (Compl. ¶J 30-238).
2. Since the filing of the Complaint, both Plaintiff and Defendants have filed various
motions. (ECFN0s. 51, 58, 69, 72). Specifically, on April 17, 2018, Plaintiff filed
a Motion for Default Judgment as to one Defendant. (ECF No. 51). Additionally,
on May 15, 2018, Defendants filed a Motion to Dismiss Plaintiffs Complaint.
(ECF No. 58). On July 12, 2018, presumably in response to Defendants’ Motion
to Dismiss, Plaintiff filed a Motion for Leave to Amend her Complaint and to
Transfer Venue. (ECF No. 59). The Honorable Steven C. Mannion, U.$.M.J.
denied Plaintiffs Motion for Leave to Amend her Complaint and Transfer Venue
on September 4, 2018. (ECF No. 71). On September 13, 2018, Plaintiff filed a
Motion for Reconsideration. (ECF No. 72). The Motions that are currently pending
before the Court are Plaintiffs Motions for Default Judgment and Reconsideration
(ECF Nos. 51, 72), as well as Defendants’ Motion to Dismiss. (ECF No. 58).
3. Plaintiffs action stems from two prior, separate lawsuits. The first was a 2009 New
Jersey State Court Action that was later removed to this Court (“Prior federal
Action). (See Civ. Action No. 09-4675). Said lawsuit was brought by some of
Defendants against, inter alia, Plaintiff. (Id.). The Prior Federal Action was settled
in August of 2010 and the action was dismissed with prejudice. (Id. at ECF Nos.
2

3 0-32). The second prior action was a New Jersey State Court Action instituted by
Plaintiff against the same individuals and entities that are Defendants in this Action
(“Prior State Court Action”). (See English v. Bank ofAm., N.J. Case No. ESX-L
10269-10). The Prior State Court Action related to the same mortgage transaction
that was the subject of the Prior Federal Action. (Id.). Afler several years of
litigation, the State Court dismissed the Prior State Court Action on summary
judgment.

(Id.).

Plaintiff appealed the dismissal and the Appellate Division

affirmed same. (See English v. Bank ofAm., N.J. App. No. A-4524-12T1).
4. As noted above, approximately two-and-a-half years later, Plaintiff filed the within
action asserting various RICO claims against all of the same Defendants. (See
generally ECF No. 1). It is obvious to this Court that Plaintiff is complaining about
the same exact mortgage transaction that was the subject of the Prior Federal Action
as well as the Prior State Court Action. (Compare ECF No. 1 with Civ. Action No.
09-4675 and N.J. Case No. ESX-L-10269-l0).
5. Herein, Plaintiff seeks to hold the same Defendants liable for their participation in
the underlying mortgage transaction as well as their involvement in the Prior
Federal Action and Prior State Court Action. (ECF No. 1).
6. The proper way for Plaintiff to proceed would be for her to seek review and relief
through the motion and appellate procedures of the respective Federal and
New Jersey State Courts. See D.C. Court ofAppeals v. Feldman, 460 U.S.
462, 482 (1983); Rooker v. fid. Trust Co., 263 U.S. 413, 414—16 (1923).
This Court is prohibited by the Rooker-Feidman doctrine from providing
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relief that would effectively reverse the decisions, directly or indirectly
invalidate the determinations, prevent the enforcement of the orders, or void
the rulings issued by the State Court in the Prior State Court Action. See
Jacobsen v. Citiliortg. Inc., 715 F. App’x 222, 223 (3dCir. 2018) (affirming
a district court’s dismissal of the claims that were brought in connection with
a state foreclosure action as being barred by the Rooker-Feidman doctrine),
pet. for reh’g & reh’gen bane denied, No. 17-3267 (3d Cir. Apr. 30, 2018);
Toddy. US. BankNat’lAss’n, 685 F. App’x 103, 105—06 (3d Cir. 2017)
(same),pet.forreh’g& reh’gen bane denied,Nos. 16-1126 & 16-1255 (3d
Cir. May 18, 2017), cert. denied, 138 S. Ct. 449 (2017).

The Rooker

Feldman bar also “encompass[es] final decisions of lower state courts.” E.3.
v. Verniero, 119 F.3d 1077, 1090 (3d Cir. 1997); see also FortAuth. Police
Benevolent Ass ‘ii, Inc. v. Port Auth. of N Y. & Ni Police Dep ‘t, 973 F.2d
169, 177—78 (3d Cir. 1992) (same).
7. In addition, it appears that this Court should abstain from exercising
jurisdiction over this action pursuant to the Younger abstention doctrine,
because (a) the Prior State Court Action may be ongoing, (b) important state
interests are implicated in the Prior State Court Action, and (c) there is an
adequate opportunity to raise federal claims in the New Jersey State Courts.
See Middlesex County Ethics Comm. v. Garden State Bar Ass ‘ii, 457 U.S.
423, 435 (1982); Younger v. Harris, 401 U.S. 37, 43—54 (1971). This Court
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is barred from interfering with the Prior State Court Action if it is indeed
ongoing and Plaintiff is seeking additional appellate review.

See

Cunningham v. Mortg. Contracting $ervs. LLC, 634 F. App’x 361, 362 (3d
Cir. 2016) (affirming dismissal of claims brought in connection to a state
foreclosure action as being barred by Younger abstention); Jacques v. Chase
Bank USA, NA., 668 F. App’x 437, 438—39 (3d Cir. 2016) (same), pet. for
reh ‘g & reh ‘g en banc denied, No. 16-1318 (3d Cir. Oct. 17, 2016).’
8. It further appears that this Court is barred from adjudicating any claims in
this action that either have been or should have been adjudicated in the Prior
Federal Action and Prior State Court Action pursuant to the well-established
doctrines of res jitdicata, collateral estoppel, and New Jersey’s entire
controversy doctrine. See Jacqites, 668 F. App’x at 43 8—39. A federal court
is authorized to sua sponte dispose of a case based on those aforementioned
reasons, even if the plaintiffs have paid the filing fee, “when the allegations
within the complaint ‘are so attenuated and unsubstantial as to be absolutely
devoid of merit,
unsubstantial,

...

...

wholly insubstantial,

...

obviously frivolous,

...

plainly

or no longer open to discussion.” DeGrazia v. Fed. Bureau

of Investigation, 316 F. App’x 172, 173 (3d Cir. 2009) (quoting Hagans v.
Lavine, 415 U.S. 528, 536—37 (1974)); see also Itiowe v. The Trentonian,

1

The Third Circuit Court of Appeals issued Jacques and Cunningham after the United States Supreme Court issued
Sprint Communications, Inc. v. Jacobs, 571 U.S. 69 (2013), and thus they are persuasive.

5

620 F. App’x 65, 67 n.2 (3d Cir. 2015) (dismissing an appeal pursuant to
Hagans from a district court order that dismissed the claims brought by a
plaintiff who paid the district court’s filing fee); Boykin v. New Jersey, No.
16-5543, 2017 WL 2560346, at *6 (D.N.J. June 12, 2017) (dismissing a case
where a fee-paying plaintiff brought a federal action to stop a foreclosure that
was proceeding in state court, and citing Hagans and Itiowe).
9. Finally, this Court is also without authority in general to review and
adjudicate issues that have arisen in New Jersey State Courts in the Prior
State Court Action. See Francis v. TD Bank, NA., 597 F. App’x 58, 61 (3d
Cir. 2014) (affirming the dismissal of a borrower’s claims alleging
misconduct by a bank in bringing a separate state foreclosure action, and
citing All. Coast Line R.R. Co.

V.

Bhd. of Locomotive Eng’rs, 398 U.S. 281

(1970), and In re Grand Jury Proceedings, 654 F.2d 26$ (3d Cir. 1981)).
10. Thus, this Court orders Plaintiff to show cause why her Complaint in this
case should not be dismissed without prejudice to Plaintiffs ability to seek
to seek relief before the New Jersey State Courts pursuant to the Rooker
Feldman doctrine, the Younger abstention doctrine, res judicata, and
collateral estoppel. For good cause shown:

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IT IS on this

3

day of

2018,

ORDERED that Plaintiff will show cause why the Complaint should not be
dismissed without prejudice to seek relief before the proper tribunal for the reasons
addressed above; and it is further
ORDERED that Plaintiff must file an electronic response with the Court on or
before October 24, 2018; and it is further
ORDERED that if Plaintiff fails to file an electronic response with the Court by
October 24, 2018, then Plaintiff will be deemed to be in support of the dismissal of her
Complaint; and it is further
ORDERED that this Order to Show Cause will be decided without oral argument
pursuant to Local Civil Rule 78.1(b); and it is further
ORDERED that Plaintiffs Motions for Default Judgment and Reconsideration
(ECF Nos. 51, 72) are hereby ADMINISTRATIVELY TERMINATED without prejudice;
and it is further
ORDERED that Plaintiff is advised that the termination of these motions is not an
adjudication on the merits at this time; and it is further
ORDERED that Defendants’ Motion to Dismiss (ECF No. 58) is hereby
ADMINISTRATIVELY TERMINATED without prejudice; and it is further
ORDERED that Defendants are advised that this termination is not an adjudication
on the merits; and it is further

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ORDERED that the Clerk of the Court shall serve a copy of this Order upon
Plaintiff via regular mail and upon Defendants electronically.
SO ORDERED.

CLAIRE C. CECCHI
United States District Judge

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