Johnson v. Wells Fargo Bank, N.A. et al

Filing 4

MEMORANDUM AND ORDER: Plaintiff's 2 request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. Plaintiff's claims are dismissed with prejudice. Accordingly, Plaintiff's complaint is dismissed wi th prejudice. 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. SO ORDERED by Judge William F. Kuntz, II on 1/15/2015. C/mailed to pro se Plaintiff. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-------------------------------------------------------------x:
DEIRDRE C. JOHNSON,
Plaintiff,

MEMORANDUM AND ORDER
14-CV-7596 (WFK)

-againstWELLS FARGO BANK, N.A.; BANK OF AMERICA,
N.A.; AMERICAN HOME MORTGAGE SERVICING,
INC.; MORTGAGE ELECTRONIC REGISTRATION
SYSTEM, INC.; WELLS FARGO HOME MORTGAGE
'
INC.; MERSCORP, INC.; GLOBAL HOME LOAN
& FINANCE, INC.; C.P. MORTGAGE, INC.;
DOE CORPORATION 1-100,
Defendants.

--------------------------------------------------------------x:
WILLIAM F. KUNTZ, II, United States District Judge.
Plaintiff Deirdre C. Johnson, filed this prose action on December 29, 2014. Plaintiffs
request to proceed informa pauperis pursuant to 28 U.S.C. § 1915 is granted. For the reasons
discussed below, plaintiffs claims are dismissed with prejudice.
BACKGROUND
Plaintiffs allegations relate to real property located at 154 Oak Street in Patchogue, New
York. The Court notes that plaintiffs cause of action and factual assertions are the same as those
set forth in a complaint plaintiff filed against many of the same defendants in this Court on
February 15, 2013. See Johnson v. Bank of America, N.A. et al., 13-CV-896 (WFK), Dkt. Entry
1 ("Prior Action"). On February 26, 2013, the Court dismissed the action for lack of subject
matter jurisdiction. See Prior Action, Dkt. Entry 4. In the current action, plaintiff states that on or

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about April 2005, "Wells Fargo claimed the plaintiff was late on mortgage payments and started

lis pendens." Compl. at 4. She further states that
[i]n early fall of 2005 the Plaintiff was contacted by C.P. Mortgage. Instead of a
refinance, the owner Christopher Perry offered to buy the property with the
plaintiff being able to buy it back stipulated in the paperwork. ... Plaintiff believes
that Christopher Perry had been acting as a 'straw buyer' in collusion with Wells
Fargo and [MERSCORP, MERS Inc., and the MERS System]. ... The plaintiff
went to several attorneys' [sic] who were not concerned that plaintiff lost the
equity in the property but that the bank had sustained a loss due to Christopher
Perry's antics.
Id. at 5-6. Plaintiff argues that "[t]here has been a collusion of fraud with regard to the Title Deed
of this property," and seeks, inter alia, money damages and injunctive relief. Id. at 4, 6.

STANDARD OF REVIEW

Pro se complaints are held to less stringent standards than pleadings drafted by attorneys
and the Court is required to read the plaintiffs pro se complaint liberally and interpret it as raising
the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, at the
pleadings stage of the proceeding, the Court must assume that "all well-pleaded, nonconclusory
factual allegations in the complaint" are true. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111, 124 (2d Cir. 2010) (citing Ashcroft v. Igbal. 556 U.S. 662, 678-80 (2009)). A complaint
must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell Atl. Cor_p. v.
Twombly, 550 U.S. 544, 570 (2007). Nonetheless, pursuant to the informa pauperis statute, the
Court must dismiss a complaint if it determines that the action "(i) is frivolous or malicious; (ii)
fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a
defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B) (2013).

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DISCUSSION

Res Judicata
Plaintiffs instant action is barred by the doctrine of res judicata. The doctrine of res

Judicata holds that when a judgment is rendered on the merits, it bars a second suit between the
same parties and those in privity with them based on the same cause of action or claims.
Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir. 2002); Waldman v. Village of
Kiryas Joel, 207 F.3d 105, 108 (2d Cir. 2000). Moreover, '"[e]ven claims based upon different
legal theories are barred provided they arise from the same transaction or occurrence."'
Cieszkowska, 295 F .3d at 205 (internal quotations omitted). A court may consider the issue of res

judicata sua sponte. See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) ("The failure of a
defendant to raise res judicata in answer does not deprive a court of the power to dismiss a claim
on that ground."); see also Scherer v. Equitable Life Assurance Soc'y of U.S., 347 F.3d 394, 399
(2d Cir. 2003) ("Res judicata, unlike other defenses, can be raised by the district court sua sponte
to determine that jurisdiction does not exist.").
To determine whether res judicata applies to preclude later litigation, a court must find
that "'(1) the previous action involved an adjudication on the merits; (2) the previous action
involved the [parties] or those in privity with them; [and] (3) the claims asserted in the subsequent
action were, or could have been, raised in the prior action."' Pike v. Freeman, 266 F.3d 78, 91 (2d
Cir. 2001) (quoting Monahan v. New York City Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir.
2000)) (brackets in original); Bay Fireworks. Inc. v. Frenkel & Co .. Inc., 359 F. Supp. 2d 257, 261
(E.D.N.Y. 2005).
Plaintiffs instant action pertains to the same set of facts and raises many of the same
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claims as in her prior action and must therefore be dismissed. Salahuddin, 992 F .2d at 449
("Dismissal of appellant's recycled claims was not only appropriate but virtually mandatory.");
see also Husain v. Smarte Carte Inc., No. 1 l-CV-5605 (KAM), 2011WL6204990, at *1
(E.D.N.Y. Dec. 12, 2011) (holding complaint was barred by resjudicata because plaintiff
attempted "to re-litigate the same claims plaintiff asserted unsuccessfully before.").
Subject Matter Jurisdiction
Even if this action was not barred by res judicata, plaintiffs claims do not form any basis
for subject matter jurisdiction. "[F]ederal courts are courts of limited jurisdiction and may not
decide cases over which they lack subject matter jurisdiction." Lyndonville Sav. Bank & Trust
Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). "The basic statutory grants of federal-court
subject-matter jurisdiction are contained in 28 U.S.C. §§ 1331 and 1332." Arbaugh v. Y & H
Corp., 546 U.S. 500, 513 (2006). Section 1331 provides for"[f]ederal question" jurisdiction, and
§ 1332 provides for "[d]iversity of citizenship" jurisdiction. Id. (brackets in original). "A plaintiff
properly invokes § 13 31 jurisdiction when she pleads a colorable claim 'arising under' the
Constitution or laws of the United States." Id. Jurisdiction under§ 1332 jurisdiction exists when a
plaintiff presents a claim between parties of diverse citizenship that exceeds the required
jurisdictional amount, which is currently $75,000. Id.; see also 28 U.S.C. § 1332(a) (2013). If the
court "determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
action." Fed. R. Civ. P. 12(h)(3); accord Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240,
250 (2d Cir. 2008). Here, plaintiff alleges diversity jurisdiction, but complete diversity does not

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..
exist between the parties and plaintiffs claims do not present a federal question. 1

CONCLUSION
Accordingly, plaintiffs complaint is dismissed with prejudice. 28 U.S.C. § 1915(e)(2)(B)
(2013), Fed. R. Civ. P. 12 (h)(3). 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. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

/S/ Judge William F. Kuntz, II
~ WILLIAM F. KUN~Z~

G/

United States Districfudge

Dated: Brooklyn, New York
January 15, 2015

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To the extent plaintiff seeks to have this Court intervene in any foreclosure or landlord-tenant matters, this
Court is without jurisdiction to grant plaintiff the relief she seeks. See Modica v. Eastern Savings Bank, No. 14-CV1384 (KAM), 2014 WL 1775553, at *2 (E.D.N.Y. May 2, 2014) (noting federal court lacks jurisdiction over
judgments of foreclosure, as they are "fundamentally matters of state law") (internal citation omitted); Gordon v.
Deutsche Bank Nat. Trust Co., No. 11 CV 5090 (WFK), 2011 WL 5325399, at *2 (E.D.N.Y. Nov. 3, 2011) ("To the
extent that plaintiff seeks to overturn the state court proceedings regarding the foreclosure of his home, this Court
lacks subject matter jurisdiction.").

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