Marett v. Citigroup Global Markets Realty Corp. et al
ORDER granting 10 Motion to Dismiss for Failure to State a Claim; granting 10 Motion to Dismiss for Lack of Jurisdiction - For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, defendant Kondaur Capital Corp.'s motion to dismi ss is granted. Because the complaint also fails to set forth this court's subject matter jurisdiction over defendant Citigroup Global Markets Realty Corp, and plaintiff has yet to identify the John Doe defendants, the complaint is dismissed wit h prejudice against all defendants as to the federal claims, and without prejudice as to any state law claims plaintiff may have, which plaintiff is free to pursue in state court. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). Defendant Kondaur Capital Corp. is her eby directed to serve a copy of this Electronic Order and the Attached Written Summary Order on pro se plaintiff and codefendant Citigroup within five days of the date of this Order and immediately thereafter electronically file proof of such service with the court. The Clerk of the Court is directed to enter judgment in favor of defendants and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/30/2012. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
VINETTE MARETT, pro se,
CITIGROUP GLOBAL MARKETS REALTY
CORP., KONDAUR CAPITAL CORPORATION,
and JOHN DOE 1-4,
DORA L. IRIZARRY, United States District Judge:
On May 18, 2011, pro se Plaintiff Vinette Marett (“Plaintiff”) filed this action against
Citigroup Global Markets Realty Corp. (“Citigroup”) 1 and Kondaur Capital Corporation
(“Kondaur,” collectively with Citigroup, “Defendants”).
Plaintiff alleges that Citigroup
“committed fraud when it issued a high interest bearing loan and that the principal value of the
loan is over one half million dollars” when it issued a mortgage to Plaintiff securing a property in
Brooklyn. (Compl. ¶ 2.) Plaintiff also contends that “Citigroup had assigned the mortgage to
Kondaur Capital Corporation and that the assignment of [the] mortgage was illegal, defective
and did not have the necessary proofs and evidence of a sound and legitimate transfer of real
property and ownership.” (Id. at 3.) Plaintiff claims that the action is brought “pursuant to title
28 U.S.C. Section 2201 and 2202 of Chapter 151, 155 and 159 an[d] that this Court has
jurisdiction over this action pursuant to title 28 U.S.C. Section 1983 and 1985 of the federal
code.” (Id. at 1.)
While Citigroup has not yet answered the Complaint, for the same reasons the action is
dismissed against Kondaur, the Complaint is dismissed sua sponte against Citigroup, as Plaintiff
has failed to set out a viable federal claim against Citigroup. See 28 U.S.C. § 1915(e)(2) (2012).
Kondaur moved to dismiss the Complaint pursuant to 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a
claim. (See Dkt. Entry 10.) For the reasons set forth below, the court finds that Plaintiff has not
stated a claim under federal law and, to the extent that her other claims are rooted in state law,
the court declines to exercise supplemental jurisdiction over those state law claims.
Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move,
in lieu of an answer, for dismissal of a complaint for “failure to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). To determine whether dismissal is appropriate, “a
court must accept as true all [factual] allegations contained in a complaint” but need not accept
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
For this reason,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to insulate a claim against dismissal. Id. Moreover, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic v. Twombly, 550 U.S.
544, 570 (2007)). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to
relief.” Id. at 1950 (internal citations and quotation marks omitted).
In reviewing Plaintiff’s complaint, the court is mindful that, “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). A district court must nevertheless
dismiss an in forma pauperis action when it fails to state a claim on which relief can be granted.
28 U.S.C. § 1915(e)(2)(B)(ii) (2012).
The Complaint alleges that the action is brought pursuant to 28 U.S.C. § 1983 (“Section
1983”) in alleging that Defendants “participated in fraud and predatory lending” and “violated
the due process rights of the Plaintiff when it participated in . . . deception and practices that
violate the law.” (Compl. at 1, 5.) However, “Section 1983 addresses only those injuries caused
by state actors or those acting under color of state law.” Spear v. Town of West Hartford, 954 F.
2d 63, 68 (2d Cir. 1992). “A private defendant may be held liable only as a willful participant in
joint activity with the State or its agents.” Id. (quotation marks omitted). Kondaur is a non-state
actor and Plaintiff has not alleged that Kondaur conspired with the government in holding or
servicing Plaintiff’s mortgage. Thus, Plaintiff has not stated a claim under 28 U.S.C. § 1983.
Plaintiff also purports to bring this action under 28 U.S.C. § 1985. (See Compl. at 1.)
There is no such statute, but Kondaur assumes that Plaintiff is attempting to invoke 42 U.S.C. §
1985. (See Mem. of Law in Supp. of Kondaur’s Mot. to Dismiss, Dkt. Entry 10, at 5-6.)
Assuming that Plaintiff is attempting to bring a claim under 42 U.S.C. § 1985 (“Section 1985”),
her claim still fails. Under Section 1985, Plaintiff must demonstrate a: “(1) a conspiracy; (2) for
the purpose of depriving, either directly or indirectly, any person or class of persons of equal
protection of the laws, or of equal privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or
deprived of any right of a citizen of the United States.” Mian v. Donaldson, Lufkin & Jenrette
Sec. Corp., 7 F. 3d 1085, 1087 (2d Cir. 1993). In addition, “the conspiracy must also be
motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus
behind the conspirators’ action.” Id. at 1088 (quotation marks omitted). Plaintiff has not alleged
that any wrongdoing by Kondaur was motivated by race. Accordingly, Plaintiff has not stated a
claim under Section 1985.
Generally, a court should not dismiss a pro se complaint “without granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Cuoco v. Moritsugu, 222 F. 3d 99, 112 (2d Cir. 2000) (internal quotation
marks and citation omitted). However, a court may deny an opportunity to amend “when
amendment would be futile.” Fulton v. Goord, 591 F. 3d 37, 45 (2d Cir. 2009) (internal
quotation marks and citation omitted). Here, it is clear from Plaintiff’s submissions that she does
not have any possibility of asserting a plausible federal claim. Therefore, any attempt to amend
the complaint would be futile. See Cuoco, 222 F. 3d at 112 (denying leave to amend a pro se
complaint where amendment would be futile). Accordingly, the complaint is dismissed with
prejudice with respect to Plaintiff’s federal claims.
To the extent Plaintiff’s contentions that Kondaur engaged in fraud and that the
assignment of Plaintiff’s mortgage was invalid sound in state law, this court declines to exercise
supplemental jurisdiction over those claims. See 28 U.S.C. § 1367(c)(3); Valencia ex rel.
Franco v. Lee, 316 F. 3d 299, 304–06 (2d Cir. 2003). Any state law claims against both
Defendants are therefore dismissed without prejudice for Plaintiff to pursue any such claims in
For the reasons set forth above, the Complaint is dismissed with prejudice against both
Defendants as to Plaintiff’s federal claims, and without prejudice as to any state law claims
Plaintiff may have, which Plaintiff is free to pursue in state court. The court certifies pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and,
therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444–45 (1962).
Dated: Brooklyn, New York
March 30, 2012
DORA L. IRIZARRY
United States District Judge
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