ENGLISH v. KAPLAN et al

Filing 90

OPINION. Signed by Judge Claire C. Cecchi on 1/31/2023. (dam)

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NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARILYNN ENGLISH,
v.

Civil Action No.: 18-01617

Plaintiff,
OPINION

ATTORNEY DAVID KAPLAN, et al.,
Defendants.
CECCHI, District Judge.
This matter comes before the Court upon four items: (1) a motion to dismiss filed by Judge
Allison Accurso, Judge William Nugent, and Judge Carolyn Wright (collectively, the “Judicial
Defendants”), ECF No. 56; (2) a motion dismiss filed jointly by all defendants (collectively, the
“Defendants”), ECF No. 58; see also ECF No. 58-1 (“Def. Br.”); (3) an order to show cause
(“OTSC”) issued to Marilynn English (“English” or “Plaintiff”), ECF No. 76, and her responses,
ECF Nos. 78 (“Pl. OTSC Resp.”), 85 (“Pl. OTSC Supp.); and (4) English’s motion for recusal,
ECF No. 82. English opposed the motions to dismiss, ECF Nos. 59 (“Pl. Br.”), 60 (“Pl. Supp.
Br.”), and Defendants replied, ECF No. 65 (“Def. Reply”). English filed additional materials,
which the Court has also considered. ECF Nos. 64, 81, 84. 86.

The Court decides this matter

without oral argument pursuant to Federal Rule of Civil Procedure 78(b). Having considered the
parties’ submissions, and for the reasons set forth below, both motions to dismiss are GRANTED.
Plaintiff’s motion for recusal is DENIED.
I.

BACKGROUND

The instant action, a civil RICO and § 1983 suit against 14 defendants, arises out of the
facts underlying two previous lawsuits, which, in turn, concerned a mortgage transaction and
related real estate purchase in 2006. Because the instant action requires an understanding of the

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facts of the real estate transaction and the subsequent two lawsuits, the Court first describes these
incidents before turning to the details of the civil RICO and § 1983 suit presently before the Court.
A. The 2006 Real Estate Transaction
In 2005, English, who was the co-founder and partial owner of the mortgage brokerage
firm English Financial LLC (“EFLLC”) was approached by Shauyn Copeland (“Copeland”) to
assist her in procuring a mortgage in connection with her purchase of a four-family home in
Newark, New Jersey from Copeland’s brother-in-law Rodney Copeland. See, e.g., Compl. ¶¶ 24,
30-63. 1 Because Copeland indicated she planned on living in the property and wanted to minimize
any down payment, English advised her to apply for a stated income loan requiring only a ten
percent down payment but requiring asset verification. See English v. Bank of Am., N.J. App. No.
A-4524-12T1, 2014 WL 9988580, at *1 (N.J. Super. App. Div. July 2, 2015). English then
submitted a Verification of Deposit form to Copeland’s bank on behalf of Copeland to verify her
assets. Copeland’s bank verified that Copeland had approximately $76,000 in assets, although
English now alleges that Copeland “did not have the money she claimed to have on deposit at the
bank.” Id. at *2.
In 2006, Copeland agreed on a purchase price with her brother-in-law and obtained a
mortgage from Countrywide Bank, N.A. (“Countrywide”), with English’s assistance. Shortly
thereafter, Copeland defaulted on her mortgage, and the property went into foreclosure, leading to
the first of the two prior lawsuits implicated here. Id. at *1.

1

These facts are laid out in more detail in English v. Bank of Am., N.J. App. No. A-4524-12T1,
2014 WL 9988580 (N.J. Super. App. Div. July 2, 2015), as part of the 2010 lawsuit filed by English
that is discussed further below.
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B. The 2009 and 2010 Actions
The first lawsuit was a predatory lending complaint brought by Copeland against
Countrywide (the “2009 Action”). It also named as defendants the other parties having some
involvement with the loan or real estate transaction—namely English, EFLLC (her mortgage
brokerage), and the title agency that participated in the closing. 2 Copeland asserted, inter alia,
violations of the Federal Truth in Lending Act, the Federal Real Estate Settlement Procedures Act,
and the federal RICO statute. The crux of the suit appears to have been an attempt to stop the
pending foreclosure of Copeland’s property (although certain monetary damages were also sought)
on account of various allegations of fraud perpetrated by Countrywide and the others involved in
the mortgage and real estate transaction. See generally Civ. Action No. 09-4675, ECF No. 1; see
also, e.g., id. at ¶ 69. The 2009 Action was removed to this Court, and after a settlement conference
before Magistrate Judge Mark Falk, it was “settled as to all parties and all claims.” ECF No. 32.
Specifically, it was voluntarily dismissed with prejudice with respect to Countrywide, and
dismissed without prejudice as to English and EFLLC. See ECF Nos. 30-32. That settlement was
funded by Bank of America, N.A. (“BOA”) on behalf of Countrywide, which BOA had acquired
in 2009. See Def. Br. at 6. 3
The second lawsuit, filed in 2010, was a New Jersey state court action instituted by English
and EFFLC 4 against individuals and entities related to the 2009 Action, many of whom are now

2

Copeland brought the action through her counsel David Kaplan, and English defended the action
through her counsel William Strazza. Both Kaplan and Strazza are named as defendants in the
instant action.
3

Defendants assert that this is a matter of public record for which the Court may take judicial
notice. See Def. Br. at 6. That BOA funded the settlement was also noted by the Appellate Division.
See English, 2014 WL 9988580, at *1 n.2.
4

EFLLC’s claims were dismissed after its counsel withdraw, and English became self-represented.
See English, 2014 WL 9988580, at *1.
3

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named as defendants in the instant action. See English v. Bank of Am., N.J. Case No. ESX L10269-10 (the “2010 Action”) (listing Copeland, Rodney Copeland, Michael Copeland, Donna
Rinaldo, and David Kaplan as defendants, as well as Bank of America, N.A. (“BOA”)). 5 English
asserted “common law fraud, conspiracy, tortious interference, negligence, negligent supervision
and tortious interference, vicarious liability, negligent interference, fraud, filing a false and
frivolous lawsuit, and facilitating fraud.” English, 2014 WL 9988580, at *1. As the Appellate
Division further explained:
The gravamen of her claims is that she was the victim of fraud committed by
Shauyn, Rodney, Rinaldo and the unidentified Bank of America employee that
provided the erroneous information on the Verification of Deposit. She claims that
because of the lawsuit filed negligently against her and her company by David
Kaplan, the company lost its surety bond, causing damage to her reputation and
income. Plaintiff claims English Financial could not broker mortgages without a
bond, and that its loss ultimately led to her personal bankruptcy.
Id. Accordingly, English sought money damages resulting from the loss of her company’s surety
bond and related losses in income. See id. After several years of litigation, the state court dismissed
the action on summary judgment, with the trial court’s dismissal affirmed by the Appellate
Division upon English’s appeal. See id. The Appellate Division affirmed that English could not
establish that any of the defendants owed her a cognizable duty, and that English “failed to
establish the claimed reduction in her income was proximally caused by the [2009 Action].” Id. at
*4. The court also affirmed dismissal of the claim for a false and frivolous lawsuit. Finally, the
court acknowledged English’s own concession in the 2010 Action that “the fraud at the heart of
her conspiracy claims can not [sic] yet be proven” and that other allegations were “nothing more
than mere speculation.” Id. at 3 (internal quotations omitted).

5

The attorneys for the defendants in the 2010 action—Benjamin Slavitt, Joseph Mariniello,
William T. Marshall, Jr., and Steven Tegrar—are all named as defendants in the instant action.
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The New Jersey Supreme Court denied certification of the Appellate Division’s decision.
See English v. Bank of Am., N.A., 137 A.3d 533 (N.J. 2016). The United States Supreme Court
subsequently denied certiorari, see English v. Bank of Am., N.A., 137 S. Ct. 1087 (Mem.) (Feb. 21,
2017) and a petition for rehearing, see English v. Bank of Am., N.A., 138 S. Ct. 34 (Mem.) (July
17, 2017).
C. The Instant Action
After exhausting her appellate options in New Jersey and the United States Supreme Court,
English filed the instant action. See ECF No. 1 (“Compl.”). As best as can be discerned from the
pleadings, the fourteen counts of the Complaint, each naming a different defendant, appear to
assert causes of action under the Racketeer Influenced Corrupt Organization Act, 18 U.S.C. §
1964(c) (“RICO”) and 42 U.S.C. § 1983. See, e.g., Compl. ¶¶ 63, 183. The crux of the Complaint
appears to be that “all Judges [in the two prior actions] ruled incorrectly based on bias, prejudice,
and incorrect ‘facts’ (a/k/a misrepresentations) by the Defendants.” Id. at 2 (Introduction).
Accordingly, English “demands that the initial case be reopened.” Id. ¶¶ 64, 72, 89, 115, 120, 134,
140, 149, 162, 177, 182, 200, 227, 238. She also appears to seek monetary damages in the form of
“punitive and treble damages,” id. ¶¶ 64, 72, 89, et al., apparently “[d]ue to Plaintiff[’]s loss of her
Surety Bond and loss of income due to the fraud and other charges against [Plaintiff],” id. at 1.
Portions of the Complaint attempt to explain the allegations originally made by Copeland
in the 2009 Action, and then proceed to refute these allegations, offering English’s own version of
the facts underlying the 2009 suit filed by Copeland. See, e.g., id. ¶¶ 30-64, 55-69, 94-114, 12133 151-55. Based on English’s version of events, Copeland allegedly engaged in widespread fraud
concerning her disclosures for the 2006 mortgage and real estate transactions, as well as with
respect to other unrelated incidents. See, e.g., id. ¶¶ 33, 43, 151-57. English also alleges that
Copeland’s attorney in the 2009 Action, David Kaplan, knew about Copeland’s fraud but
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nevertheless filed the lawsuit on her behalf, thus “dragg[ing] in innocent people most likely to
obtain insurance or settlement proceeds, while aiding and abetting his client’s fraud.” Id. ¶ 54. As
English later explains, because Copeland “was a master at fraud,” she was a “perfect partner for
Attorney Kaplan’s scam” to “stop people from being foreclosed upon” by “providing false and
fraudulent documents to the Court.” Id. ¶ 151. This conspiracy of fraud appears to form the basis
of English’s RICO allegation.
English appears to allege that all 14 defendants took part in this conspiracy of fraud
directly, or knew of the fraud and took no action to stop it, thereby becoming part of the RICO
conspiracy and enterprise. For example, in terms of direct participation in the alleged fraud,
English asserts that Rodney Copeland “masterminded the fraudulent purchase of his property with
his sister in law.” Id. ¶ 163; see also id. ¶ 121 (alleging Donna Rinaldo, Copeland’s lawyer for the
real estate transaction, contributed to the fraud “through her falsified contracts”). Other defendants,
on the other hand, are alleged to be part of the conspiracy based upon their knowledge of the fraud
combined with a failure to act. See, e.g., id. ¶ 73 (alleging that attorney Steven Tegrar, defense
counsel in the 2010 Action for Copeland’s real estate attorney Donna Rinaldo, “knew that the
allegations against Plaintiff were fraudulent, yet he did nothing to stop it”); id. ¶ 135 (asserting
that Kaplan’s law partner, Frank Tobias, was part of the conspiracy because he authorized the
settlement in the 2009 Action); id. ¶ 116 (claiming that Joseph Mariniello, Rodney Copeland’s
attorney in the 2010 Action, “knew of the fraud perpetrated by his client … [but] did not report his
client or any other party in the conspiracy to Federal Authorities.”).
English also contends that the New Jersey judges ruling on her 2010 Action—Judge Wright
at the trial level, and Judges Accurso and Nugent at the appellate level—were part of this
conspiracy and, accordingly, deprived English of her due process rights in violation of § 1983
when they dismissed or affirmed dismissal of the 2010 Action. See id. ¶¶ 183-238.
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In sum, liberally construing the Complaint, English purports to allege a RICO conspiracy—
between the litigants in the 2009 Action and the 2010 Action, their attorneys (including English’s
attorney, see id. ¶¶ 31-33), and the judges ruling on these Actions—aimed at the following:
securing a real estate purchase by fraud; instituting a frivolous lawsuit against English and others
based on fraudulent documents for the purpose of stopping foreclosure on Copeland’s property;
and then continuing and/or covering up that fraud as defendants (or judges) in the 2010 Action
brought by English.
D. Procedural History
The Judicial Defendants moved to dismiss the claims against them based on judicial
immunity. See ECF No. 56. Defendants also moved jointly to dismiss the complaint on multiple
grounds, including lack of subject matter jurisdiction pursuant to various preclusion doctrines and
lack of standing, as well as a failure to state a claim under Rule 12(b)(6). See generally Def. Br. 6
English’s responses mostly reiterated the allegations in her Complaint, see generally Pl. Br., Pl.
Supp. Br., and included assertions that two of the preclusion doctrines raised by Defendants (res
judicata and the entire controversy doctrine) did not apply. See Pl. Br. at 22.
Thereafter, the Court issued English an order to show cause (“OTSC”) why her complaint
in this case should not be dismissed without prejudice pursuant to the Rooker-Feldman doctrine,
the Younger abstention doctrine, res judicata, and collateral estoppel. ECF No. 76. English offered
two responses. See generally Pl. OTSC Br., Pl. OTSC Supp. In these responses, English returned
to the alleged conspiracy, explaining: “This Case is rife with Fraud. Defendants’ collectively and
individually resulted in the Banks, Corporations and Individuals being swindled in untold amounts
Defendant Benjamin Slavitt filed an individual “supplemental submission” seeking to dismiss
the Complaint on the basis that he was not English’s attorney and did not owe her a cognizable
duty. ECF No. 57 at 1. Because the Court dismisses the Complaint on other grounds, it need not
reach this argument.
6

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of money which have yet to be investigated.” Pl. OTSC Br. at 2; see also id. at 11 (explaining
“[t]he failure to Act by the Judges is why we are here today”). When interpreted in the light most
favorable to her, English’s responses appear to assert that certain preclusion doctrines do not apply
because “RICO was not previously addressed or argued in any Court.” Id. at 14; but see id. (“The
State Court Action is not ongoing. It was never a RICO Action…. If there were ‘important state
interests implicated in the Prior State Court Action’ why did the Judges dismiss them without
reading the factual data as they are required to do.”). Id. at 14 (quoting ECF No. 76 at ¶7)
(emphasis omitted).
English also filed a motion seeking recusal of both this Court and Magistrate Judge Steven
C. Mannion, ECF No. 82, which Judge Mannion denied. ECF No. 83. 7 To the extent Judge
Mannion’s order spoke only for himself, this Court also finds that recusal is not warranted as to
the undersigned. English alleged that “continuous erroneous rulings qualify as a right to ask for
recusal.” ECF No. 82 at 12. However, a litigant’s disagreements with the decisions of the Court
do not provide cause for recusal. See, e.g., Securacomm Consulting, Inc. v. Securacom, Inc., 224
F.3d 273, 278 (3d Cir. 2000) (holding a party’s displeasure with legal rulings does not form an
adequate basis for recusal). Moreover, English’s conclusory assertion that there “has been bias[]
toward this Pro Se Plaintiff since inception,” ECF No. 82 at 14, similarly fails to justify recusal.
See Bey v. Bruey, No. 09–1092, 2010 WL 276076, at *1 (D.N.J. Jan 19, 2010) (“Conclusory allegations
of bias are insufficient to warrant recusal.”) (citing Hill v. Carpenter, 323 F.App’x 167, 170 (3d Cir.

In addition to the motion for recusal, English filed numerous other motions with this Court that
have since been addressed. See, e.g., ECF Nos. 3, 5, 6, 51, 69. The Court notes that English has
also provided additional briefing and correspondence in various formats, which, although not
always compliant with the Local Rules, the Court has nonetheless considered in their entirety. See,
e.g., ECF Nos. 81, 84, 86.
7

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2009)). Accordingly, insofar as there may be any uncertainty regarding the scope of Judge Mannion’s
order on recusal, this Court reiterates that recusal of the undersigned is unwarranted.

II.

LEGAL STANDARD

A.

Rule 12(b)(1)

A court must grant a motion to dismiss under Rule 12(b)(1) if it determines that it lacks
subject matter jurisdiction over a claim. In re Schering Plough Corp. Intron/Temodar Consumer
Class Action, 678 F.3d 235, 243 (3d Cir. 2012). “Generally, where a defendant moves to dismiss
under Rule 12(b)(1) for lack of subject-matter jurisdiction, the plaintiff bears the burden of proving
by a preponderance of the evidence that the Court has subject matter jurisdiction.” The Connelly
Firm, P.C. v. U.S. Dep’t of the Treasury, No. 15-2695, 2016 WL 1559299, at *2 (D.N.J. Apr. 18,
2016) (citing Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000)). Further, when
addressing subject matter jurisdiction, the court looks only at the allegations in the pleadings and
does so in the light most favorable to the non-moving party. U.S. ex rel. Atkinson v. PA.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
B.

Rule 12(b)(6)

To survive dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual allegations
as true and draw all reasonable inferences in favor of the non-moving party. Phillips v. Cty. of
Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). Factual allegations must support a right to relief that
is more than speculative. Twombly, 550 U.S. at 555. A complaint “that offers ‘labels and
conclusions’ or . . . tenders ‘naked assertions’ devoid of further factual enhancement,’” will not
suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). The party seeking
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dismissal under Rule 12(b)(6) bears the burden of demonstrating that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
C.

Liberal Pleading Standard for Pro Se Litigants

Pro se complaints are liberally construed and held to less stringent standards than pleadings
drafted by lawyers. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244–45 (2013) (“[P]ro se
litigants still must allege sufficient facts.”). A pro se complaint will be dismissed if “it appears
‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle
him to relief.’” Mishra v. Fox, 197 F. App’x 167, 168 (3d Cir. 2006) (citation omitted).
III.

DISCUSSION

As noted above, there are two motions to dismiss before the Court. The first, filed by the
Judicial Defendants, argues that they are entitled to absolute judicial immunity. See ECF No. 56.
The second, filed jointly by all Defendants, makes three arguments why the Complaint must be
dismissed: (1) this Court lacks subject matter jurisdiction based on the Rooker-Feldman doctrine,
English’s lack of standing, res judicata, and the entire controversy doctrine; (2) the Complaint
fails to state a claim under Rule 12(b)(6); and (3) the Complaint is insufficiently pleaded under
Rules 8(a) and 9(b). See ECF No. 58. Because the OTSC addresses preclusion doctrines also raised
in the motion to dismiss, the Court need not address the OTSC separately. Addressing each motion
to dismiss in turn below, the Court finds that the judicial Defendants are entitled to absolute judicial
immunity, and the Court must also dismiss the Complaint for lack of subject matter jurisdiction
and failure to state a claim under Rule 12(b)(6).
A.

Judicial Immunity

The United States Supreme Court has long held that “it is a general principle of the highest
importance to the proper administration of justice that a judicial officer, in exercising the authority
vested in him, shall be free to act upon his own convictions, without apprehension of personal
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consequences to himself.” Bradley v. Fisher, 80 U.S. 335, 347 (1871). Accordingly, our judicial
system provides that “[a]ny errors made by a judge may be corrected on appeal, but a judge should
not have to fear that unsatisfied litigants may hound him with litigation charging malice or
corruption.” Pierson v. Ray, 384 U.S. 547, 554 (1967). Simply put, the Supreme Court “has
consistently adhered to the rule that judges defending against § 1983 actions enjoy absolute
immunity from damages liability for acts performed in their judicial capacities.” Dennis v. Sparks,
449 U.S. 24, 27 (1980) (internal quotation marks and citations omitted).
Here, none of the allegations, even liberally construed, would defeat judicial immunity.
Plaintiff’s allegation against Judge Wright appears to be that she was improperly biased on account
of becoming “belligerent” with an attorney in an unrelated case, her husband’s friendship with the
“County Executive,” and her failure to recuse. Compl. at 39-40. To the extent the allegations touch
upon Judge Wright’s own conduct, that conduct was performed within her judicial capacity.
Therefore, Judge Wright is entitled to judicial immunity.
Similarly, English’s allegations against Judge Accurso and Judge Nugent concern
erroneous rulings which were allegedly based entirely on “whatever was written by the attorneys,”
which, English believes, consisted of “false statements made by the Attorneys “ Id. at 42. These
allegations also challenge actions taken in the Judicial Defendants’ judicial capacity, and thus fail
to pierce judicial immunity. In sum, treating all allegations as true, they amount to attacks on court
decisions that cannot overcome judicial immunity. Because amending the Complaint would be
futile with respect to judicial immunity, the Judicial Defendants are dismissed from this matter
with prejudice. See Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).
B.

Lack of Subject Matter Jurisdiction

Pursuant to Rule 12(b)(1), the Defendants move to dismiss the Complaint based on this
Court’s lack of subject matter jurisdiction. See Def. Br. at 15-22. They argue that the Court lacks
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subject matter jurisdiction under the Rooker-Feldman doctrine, that English lacks standing to bring
this action on behalf of JP Morgan Chase Bank (“Chase”), and that English’s claims are barred by
res judicata and the entire controversy doctrine. English contested these arguments in her
opposition briefs and in her responses to the Court’s OTSC. See generally Pl. Br., Pl. Supp. Br.,
Pl. OTSC Resp., Pl. OTSC Supp.
i.

Rooker-Feldman

The Rooker-Feldman doctrine prevents federal courts from “review[ing] and revers[ing]
unfavorable state-court judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
283 (2005) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983); Rooker v. Fidelity
Trust Co., 263 U.S. 413, 416 (1923)); see also Judge v. Canada, 208 F. App’x 106, 107 (3d Cir.
2006) (“The Rooker-Feldman doctrine deprives a federal district court of jurisdiction to review
directly or indirectly a state court adjudication.”). This precludes “lower federal court jurisdiction
over claims that were actually litigated or ‘inextricably intertwined’ with adjudication by a state’s
courts.” Parkview Assocs. Pshp. v. City of Leb., 225 F.3d 321, 325 (3d Cir. 2000) (internal
qutotation omitted). Accordingly, this Court is prohibited by the doctrine from providing 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 2010
Action. See Jacobsen v. Citi Mortg. Inc., 715 F. App’x 222, 223 (3d Cir. 2018). The Third Circuit
has distilled the doctrine into a four-prong test, explaining it is applicable to “[1] cases brought by
state-court losers [2] complaining of injuries caused by state-court judgments [3] rendered before
the district court proceedings commenced and [4] inviting district court review and rejection of
those judgments.” Doncheva v. Citizens Bank of Pennsylvania, 820 F. App’x 133, 135 (3d Cir.
2020) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). For the

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reasons discussed below, the Court finds that this case meets all four prongs of the RookerFeldman test.
Before turning to the test, the complexity of English’s allegations warrants a summary of
her claims. Construing the Complaint liberally and in the light most favorable to her, English’s
RICO claims are premised upon the allegation that the judgment entered against her in the 2010
Action was incorrect and the result of fraud. Essentially, English contests the facts that were
presented to this Court in the 2009 Action and to the state court in the 2010 Action (which includes
facts relating to the 2006 mortgage and real estate transaction), asserting that those “facts” were
either fraudulent misrepresentations or incorrect. And because the litigants and attorneys were
aware of this fraud (or went along with it or overlooked it in the judges’ case), English alleges they
were all part of a RICO conspiracy. See, e.g., Compl. ¶¶ 30-64 (challenging the basis for the 2009
Action as fraud); id. ¶¶ 65-72 (alleging Benjamin Slavitt, Copeland’s attorney in the 2010 Action,
was aware of Copeland’s fraud in the 2006 transaction and 2009 Action); id. ¶¶ 90-115 (alleging
false interrogatories and erroneous certifications by William T. Marshall, Jr., attorney for
Countrywide Bank, N.A., and BOA in the 2009 Action); id. ¶¶ 116-20 (alleging Joseph Mariniello,
attorney for Rodney Copeland in the 2010 Action, did not report his client’s prior fraud); id. ¶¶
121-34 (alleging Rinaldo committed fraud as the attorney for Copeland in the 2006 real estate
transaction). At its core then, putting aside the complicated nature of each defendant’s purported
role in the various transactions and lawsuits, English’s RICO claims seek to attack the result of the
2010 Action based on English’s contrasting account of the facts underlying that suit.
Having set forth the relevant context for this issue, the Court turns back to the test for the
Rooker-Feldman doctrine. The first and third prongs ask whether the case was brought by a “statecourt loser” where the state court decision was “rendered before the district court proceedings
commenced,” respectively. Doncheva, 820 F. App’x at 135. These prongs are satisfied here
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because the New Jersey Superior Court entered its Final Judgment against English in 2013, and
the Appellate Division affirmed the judgment on July 2, 2015. See English, 2014 WL 9988580;
see also English v. Bank of Am., N.A., 137 A.3d 533 (N.J. 2016) (denial of certification by New
Jersey Supreme Court); English v. Bank of Am., N.A., 137 S. Ct. 1087 (Mem.) (Feb. 21, 2017)
(denial of petition for certiorari). Moreover, Plaintiff did not file the instant Complaint until
February 6, 2018, after the culmination of those state court proceedings. ECF No. 1.
The second prong—whether Plaintiff is “complaining of injuries caused by state-court
judgments”—is also satisfied because Plaintiff seeks the same damages she was denied in the 2010
Action and, moreover, seeks to correct that decision due to alleged erroneous or fraudulent
information. Id. As the Third Circuit found in Purpura v. Bushkin, Gaimes, Gains, Jonas &
Stream, 317 F. App’x 263 (3d Cir.2009), a RICO suit that alleges conspiracy and fraud in a prior
unfavorable decision is essentially a challenge to injuries caused by that unfavorable prior
judgment. See id. at 264 (rejecting RICO suit brought against plaintiff’s former wife and the
attorneys and state court judiciary in plaintiff’s divorce action which claimed that the defendants
“conspired to use the New York divorce action as a vehicle to fraudulently obtain and enter
judgments against him”). Although English contends that “RICO was never argued in the previous
action against all the Defendants,” Pl. Br. at 14, English does not refute that the injuries she
complains of were rejected by the state courts in the 2010 Action. Moreover, in Purpura, the Third
Circuit recognized that a RICO allegation had not been made in the prior action but nevertheless
found that the subsequent RICO suit was “precisely the kind of action that the Rooker-Feldman
doctrine is designed to preclude” because it sought to invalidate a prior judgment based on a
purported conspiracy of fraud. Purpura, 317 F. App’x at 266. The Third Circuit’s reasoning in
Purpura applies directly to this case as well, a RICO suit claiming fraud in a prior action with an
unfavorable result.
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The fourth prong—whether the instant action invites district court review and rejection of
those judgments—is met because, in order for this Court to grant the relief Plaintiff requests, it
would have to find that the state courts should not have dismissed the 2010 Action. See Parkview
Assocs. Pshp. 225 F.3d at 325; Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir.
2006) (explaining the standard encapsulates litigations “[w]here federal relief can only be
predicated upon a conviction that the state court was wrong”). For example, to sustain the damages
Plaintiff seeks, this Court would have to find—in direct contrast to the decision of the New Jersey
state courts—that Plaintiff’s loss of surety bond and associated losses of income indeed resulted
from a fraud perpetrated on Plaintiff through the 2009 Action. See English, 2014 WL 9988580, at
*3. Additionally, granting English’s “demand[] that the [2009 Action] be reopened,” see, e.g.,
Compl. ¶¶ 64, 72, 89, et al., would require this Court to accept the same factual allegations deemed
to be “nothing more than mere speculation” by the court in the 2010 Action, English, 2014 WL
9988580, at *3. Because the Court “is prohibited from providing relief that would effectively
reverse the decisions, directly or indirectly invalidate the determinations, prevent the enforcement
of the State Judgment, or void the rulings issued by the state court in the State Foreclosure Action,”
it cannot grant the relief sought by Plaintiff. Wilson v. New Jersey, et al., No. 17-444, 2017 WL
2539398, at *3 (D.N.J. June 12, 2017) (citing Francis v. TD Bank, N.A., 597 F. App’x 58, 60–61
(3d Cir. 2014)). Accordingly, as this case satisfies all four Rooker-Feldman prongs, the Court is
precluded from considering Plaintiff’s claims.
ii.

Art. III Standing

Defendants argue that because one of the principal forms of relief English now seeks is to
reopen the 2009 Action, see, e.g., Compl. ¶ 64, English is asserting an interest that belongs to
Chase and therefore lacks standing. See Def. Br. at 18. Defendants point out that English’s
Complaint recognizes that “the entity with standing” is Chase, which she describes as “the real
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party in interest” in the 2009 Action that “failed to participate in the Action [and] failed to
participate in the settlement,” and therefore “failed to protect their interest in the foreclosure
action.” Compl. ¶ 1. Essentially, Defendants argue, English lacks standing because she
impermissibly seeks to “stand in the shoes” of Chase by attempting to reopen a suit which she
claims Chase should have been more active in. 8 Def. Br. at 19. English did not address standing in
her two briefs relating to the motion to dismiss, but concluded in her supplemental briefing on the
OTSC that “she meets all of [standing’s] requirements.” Pl. OTSC Supp. at 2; see Pl. Br., Pl. Supp.
Br.
Generally, standing requires: (1) a personal injury-in-fact; (2) traceability from the acts
alleged to the injury-in-fact; and (3) redressability of the injury-in-fact following a favorable
judgment. Allen v. Wright, 468 U.S. 737 (1984). “The party invoking federal jurisdiction bears
the burden of establishing these elements.” Lujan v. Defs of Wildlife, 504 U.S. 555, 561 (1992).
As described above, English concedes that the “real party in interest” in terms of reopening the
2009 Action is third party Chase. Compl. ¶ 1. Therefore, she must establish third party standing to
bring this claim on Chase’s behalf.
The

Third

Circuit

has

explained

that

“[t]he

longstanding

basic

rule

of third party standing is that ‘in the ordinary course, a litigant must assert his or her own legal
rights and interests, and cannot rest a claim to relief on the legal rights or interests
of third parties.’” Amato v. Wilentz, 952 F.2d 742, 748 (3d Cir. 1991) (quoting Powers v. Ohio, 499
U.S. 400, 410 (1991). However, this “general rule against third party standing,” id., can be
overcome upon the “satisfaction of three preconditions: 1) the plaintiff must suffer injury; 2) the

8

Defendants note the possibility that Bank of New York Mellon (“BONYM”) has standing as an
“ultimate assignee[] of the mortgagee,” Def. Br. at 18, but argue English cannot bring the action
on BONYM’s behalf for the same reasons she cannot do so on Chase’s behalf, id. at 19-20.
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plaintiff and the third party must have a ‘close relationship’; and 3) the third party must face some
obstacles that prevent it from pursuing its own claims,” Pa. Psychiatric Soc. v. Green Spring
Health Servs., Inc., 280 F.3d 278, 288–89 (3d Cir. 2002).
Here, English has not met her burden of establishing third party standing. Lujan, 504 U.S.
at 561. She acknowledges that Chase is the “entity with standing,” Compl. ¶ 1, and “demands that
the initial case be reopened to enable Chase, the proper party, to litigate,” id. ¶ 64 (emphasis
added). In the face of this concession, she has not asserted or explained, as required by the Third
Circuit’s test, the “close relationship” between herself and Chase, or why Chase, a sophisticated
party represented by counsel faces “obstacles that prevent [Chase] from pursuing its own claims.”
Pa. Psychiatric Soc., 280 F.3d at 289. Therefore, English’s lack of standing deprives this Court of
subject matter jurisdiction and her Complaint must also be dismissed on that ground. 9
C.

Fed. R. Civ. P. 12(b)(6)

Even if this Court had subject matter jurisdiction to hear English’s RICO claims, the Court
must dismiss them under Fed. R. Civ. P. 12(b)(6). Construing her complaint liberally, as required
for pro se plaintiffs, and accepting all facts pleaded as true, English has not sufficiently alleged the
existence of a RICO “enterprise” or explained the defendants’ roles and participation in such an
enterprise. See 18 U.S.C. § 1962(c). Moreover, although English refers to a “RICO conspiracy”
throughout her Complaint, those allegations are conclusory and are thus insufficiently pleaded as
well. See 18 U.S.C. § 1962(d) (making it unlawful to conspire to violate § 1962(c)). As elaborated
below, the RICO counts must therefore be dismissed for failure to state a claim.

9

The Court notes that Defendants also argue that English’s suit is precluded by res judicata and
the entire controversy doctrine because she attempts to reopen a prior a decision, and therefore
seeks to relitigate it. See Def. Br. at 20-22. Further, Defendants contend that English’s 58-page
complaint fails to comply with Rule 8(a)(2)’s requirement of a “short and plain statement of the
claim” and Rule 9(b)’s heightened pleading standard for fraud. See id. at 31-35.
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To state a federal RICO claim under § 1962(c), a plaintiff must properly allege “(1) conduct
(2) of an enterprise (3) through a pattern (4) of racketeering activity.” Lum v. Bank of Am., 361
F.3d 217, 223 (3d Cir. 2004); see also RJR Nabisco, Inc. v. Eur. Cmty., 579 U.S. 325, 330 (2016).
Turning to a RICO “enterprise,” without which a RICO claim cannot proceed, the Third Circuit
has provided three “structural attributes” which must be adequately pleaded: “a shared purpose,
relationships among those associated with the enterprise, and longevity sufficient to permit these
associates to pursue the enterprise's purpose.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300,
370 (3d Cir. 2010). Here, English does not sufficiently allege these attributes. Although the
Complaint makes allegations about instances of fraud, it does not “tie[ ] together the various
defendants allegedly comprising the association in fact into a single entity that was formed for the
purpose of working together.” Id. (quoting Elsevier Inc. v. W.H.P.R., Inc., 692 F.Supp.2d 297, 307
(S.D.N.Y.2010)). English does not sufficiently denote a shared purpose between these the fourteen
defendants such that a single joint enterprise exists. And while the Complaint offers conclusory
allegations about individual relationships between some of the many defendants, see, e.g., Compl.
¶ 151 (noting Kaplan and Copeland were “perfect partner[s] for Attorney Kaplan’s scam”), the
Complaint “does not indicate how the different actors are associated and does not suggest a group
of persons acting together for a common purpose or course of conduct.” Id. (quoting Rao v. BP
Prods. N. Am., Inc., 589 F.3d 389, 400 (7th Cir. 2009). Without some explanation of the shared
purpose among the enterprise’s purported associates, the relationships between them, or the
structure of their association, the Court cannot infer the existence of a RICO enterprise. See
Insurance Brokerage Antitrust Litig., 618 F.3d at 370. English’s substantive RICO counts under §

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1962(c) therefore fail to state a claim upon which relief can be granted under Rule 12(b)(6) because
of the failure to plead an enterprise. 10
Similarly, to the extent English alleges a RICO conspiracy under § 1962(d), that claim also
fails. As an initial matter, a RICO conspiracy necessarily relies on an underlying substantive RICO
claim under Sections 1962 (a), (b) or (c). See § 1962(d) (“It shall be unlawful for any person to
conspire to violate any of the provisions of subsections (a), (b), or (c) of this section.”).
Accordingly, the conspiracy claim must be dismissed because “[a]ny claim under section 1962(d)
based on a conspiracy to violate the other subsections of section 1962 necessarily must fail if the
substantive claims are themselves deficient.” Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153,
1191 (3d Cir. 1993). Even assuming arguendo that English’s underlying § 1962(c) claim is viable,
however, the Complaint does not detail the purported conspiracy beyond mere conclusory
assertions that the defendants “contributed to the RICO conspiracy.” Compl. ¶¶ 64, 72, 89, 115,
120, 134, 140, 149, 162, 177, 182, 200, 227, 238, and 239. And it is well established that a “general
allegation of conspiracy without a statement of facts [is] an allegation of legal conclusion and
insufficient to state a cause of action.” A-Valey Engineers, Inc. v. Bd. of Chosen Freeholders of
County of Camden, 106 F. Supp. 2d 711, 718 (D.N.J. 2000) (quoting Black & Yates v. Mahogany
Ass'n, Inc., 129 F.2d 227, 232 (3d Cir.1941)). Indeed, courts in this district have noted the failure
“to describe the general composition of the conspiracy and each defendant’s role therein” warrants
dismissal. A-Valey Engineers, Inc., 106 F. Supp. 2d at 718. Because English has not sufficiently

10

Defendants also argue that English has not sufficiently pleaded RICO damages because she asks
for punitive and treble damages without specifying her injury. See Def. Br. at 30 (citing Twp of
Marlboro v. Scannapieco, 545 F. Supp.2d 452, 456 (D.N.J. 2008) (dismissing RICO claim where
plaintiff failed to plead damages by alleging that, “[a]s a direct and proximate result of …
Defendant’s pattern of racketeering activity, [plaintiff] has suffered injuries and losses….”)).
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alleged any details of the purported conspiracy beyond conclusory allegations of its existence, her
RICO conspiracy claim must also be dismissed.
Therefore, English’s RICO claims—pursuant to both §1962(c) and §1962(d)—are
dismissed without prejudice for failure to state a claim.
IV.

CONCLUSION

For the reasons set forth above, both motions to dismiss (ECF Nos. 56, 58) are granted. The
Complaint is dismissed with prejudice as to the Judicial Defendants and dismissed without prejudice
as to the remaining Defendants. Plaintiff’s recusal motion is denied (ECF No. 82). An appropriate
Order accompanies this Opinion.

DATED: January 31, 2023
s/ Claire C. Cecchi
CLAIRE C. CECCHI, U.S.D.J.

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