Boothe v. Rossrock Funds II LP et al
ORDER granting 33 Motion to Dismiss: For the reasons stated in the attached, the Amended Complaint is dismissed for lack of subject matter jurisdiction. Fed. R. Civ. 12(h)(3). Furthermore, the Court orders that Plaintiff, Andre Audige, and Jody A shton are enjoined from filing any motions, petitions, or actions in the District Court and Bankruptcy Court for the Eastern District of New York, relating to the property located at 3221 Church Avenue, Brooklyn, New York 11226, without first obtaining leave of this Court and leave of the Honorable Mark I. Partnow of the New York Supreme Court. The Clerk of Court is directed to return to Plaintiff, without filing, any submission that is received without an application seeking to file. 2 8 U.S.C. § 1651. Nothing herein shall be construed to prohibit Plaintiff from filing an appeal of this Order. However, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore < i>in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is respectfully directed to enter judgment and close this case. Ordered by Judge Pamela K. Chen on 5/23/2017. (Lee, Helen)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
- against -
MEMORANDUM & ORDER
ROSSROCK FUNDS II LP, FLUSHING
SAVINGS BANK, JAMES ROSS, JAMES H.
ROSS, JASPAN SCHLESINGER LLP, “GILL
CASTRO” known as “GILL CASTRO,”
FRANK DELL’AMORE, KEVIN ETZEL,
GREGORY CERCHIONE, ET AL., JOHN
DOES 1-100, all persons unknown, claiming
any legal or equitable right, title, estate, lien, or
interest in the property described in the
complaint adverse to plaintiff’s title or any
cloud on plaintiff's title thereto,
PAMELA K. CHEN, United States District Judge:
On February 23, 2016, pro se plaintiff Claudette Boothe (“Boothe” or “Plaintiff)
commenced this action against Defendants Rossrock Funds II LP (“Rossrock”), Flushing Savings
Bank (“Flushing Bank”), James Ross, Jaspan Schlesinger LLP, Gill Castro, Frank Dell’Amore,
Kevin Etzel, Gregory Cerchione, and John Does 1–100. 1 (Dkt. 1.) On March 9, 2016, Plaintiff
filed an Amended Complaint (Dkt. 7), which includes more than 200 pages of exhibits, and asserts
the following five claims: (1) 42 U.S.C. § 1983 (“Section 1983”) claim based on the alleged
James Ross is the principal of Rossrock. (Dkt. 33-1 (“Schwartz Decl.”) ¶ b.) Jaspan
Schlesinger LLP is counsel to Rossrock. (Id. ¶ c.) Gill Castro is “employed by Rossrock in its
management of [one of Rossrock’s property that is at issue in this case.]” (Id. ¶ c.) Frank
Dell’Amore is an attorney and Partner at Jaspan Schlesinger LLP. (Id. ¶ d.) Kevin Etzel is an
attorney and associate at Jaspan Schlesinger LLP. (Id. ¶ e.) Gregory Cerchione is an individual
who was appointed as the referee by the Supreme Court of New York, Kings County to handle the
foreclosure sale of the property at issue in this case. (Id. ¶ f.)
violation of Plaintiff’s “rights to Due Process and Equal Protection Under the Law secured by the
United States Constitution or by Federal law and guaranteed by the First, Fourth, Fifth, and
Fourteenth Amendments”; (2) Section 1983 abuse of process; (3) violations of 42 U.S.C. § 1985(3)
“Civil Rights Conspiracy”; (4) violation of the New York State False Claims Act; and (5) violation
of the New York City False Claims Act. 2
On August 1, 2016, Defendants moved to dismiss Plaintiff’s Amended Complaint pursuant
to Federal Rule of Civil Procedure (“FRCP”) 12(b)(1) and 12(b)(6). For the reasons stated below,
the Court finds that Plaintiff’s federal claims are barred by the Rooker–Feldman doctrine.
Accordingly, the Court grants Defendants’ motion to dismiss. Furthermore, the Court grants
Defendants’ motion to impose a filing injunction on Plaintiff, as set forth at the conclusion of this
Memorandum & Order.
This action arises out of a dispute between Plaintiff and Defendants regarding real property
at 3221 Church Avenue, Brooklyn, NY (the “Brooklyn Property”), which Plaintiff once owned,
The Court notes that the caption page of the Amended Complaint lists the following ten
causes of action: (1) Civil Racketeer Influenced and Corrupt Organizations Act (“RICO”), (2)
Fraudulent Conveyance, (3) Real Estate Fraud, (4) Fraud Upon the Court, (5) Malicious Falsehood,
(6) Civil Harassment, (7) Professional Negligence, (8) Unconscionability, (9) Abuse of Process,
and (10) Quiet Title. However, the body of the Amended Complaint itself sets forth, and provides
allegations supporting, only five causes of action. Specifically, the Amended Complaint labels
“Count 1” as “Violations of 42 U.S.C. § 1983”, “Count 2” as “Violations of 42 U.S.C. § 1985,”
“Count 3,” as “New York False Claims Act, N.Y. State Fin. Law §§ 189.1.(a)-1.(d), 1891.1(g),”
and “Count 4” as “New York City False Claims Act, NYC Admin Code §§ 7-803(a)(1)-(a)(4), 7803(a)(7).” Although Plaintiff appears to assert new factual assertions and claims in her opposition
papers, the Court does not consider them because they are outside the pleadings. See Green v. City
of Mount Vernon, 96 F. Supp. 3d 263, 285 (S.D.N.Y. 2015) (citing, inter alia, Fonte v. Bd. of
Managers of Cont’l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (“Factual allegations contained
in legal briefs or memoranda are also treated as matters outside the pleading[s] for purposes of
The facts are taken from the Amended Complaint. The Court also takes judicial notice
of court documents related to Plaintiff’s previous State and federal court actions for purposes of
but was purchased by Rossrock at a foreclosure sale. As described below, this dispute has been
heavily litigated in New York State court, the United States Bankruptcy Court in this district (the
“Bankruptcy Court”), and this Court.
Prior State and Federal Court Actions
In 1992, Plaintiff bought the Brooklyn Property for $185,000. (Dkt. 7 (“Am. Compl.”) ¶
17.) In 2004, Plaintiff sold the property to a Carlos Toledo (“Toledo”) for $400,000. (Id. ¶ 18.)
Toledo obtained a mortgage on the Brooklyn Property from Flushing Bank for $300,000 (the
“Note”) and tendered Plaintiff and her husband, Andre Audige, 4 a check in the amount of
$100,000, which bounced. (Id.) After several failed attempts by Plaintiff to secure the balance of
the agreed-upon sale price of the Brooklyn Property, Toledo deeded the Brooklyn Property back
providing the procedural history of this case and establishing the existence and legal effect of the
documents. See Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006) (“A court may take judicial notice of a document filed in another court not for the truth of
the matters asserted in the other litigation, but rather to establish the fact of such litigation and
related filings.” (quoting Int’l Star Class Yacht Racing Assn’n v. Tommy Hilfiger U.S.A., Inc., 146
F.3d 66, 70 (2d Cir. 1998))).
As previously noted, Plaintiff has submitted an Amended Complaint with more than 200
pages of exhibits. Defendants also submitted nine exhibits along with their motion to dismiss and
a declaration in support of their motion to dismiss. However, much of Defendants’ assertions in
the declaration will not be considered by the Court as Defendants do not provide support for them.
(Dkt. 33-1, Schwartz Decl.) For example, it is alleged in Defendants’ declaration that Plaintiff and
her daughter executed a deed in which they added Plaintiff’s husband as an owner of the Brooklyn
Property, without the consent of Rossrock (id. ¶ 11), and that Plaintiff and her family members
have filed bankruptcy filings that caused cancellation of at least seven scheduled foreclosure sales
(id. ¶ 12). Notably, none of these statements are supported by any documents identified by
Defendants or this Court. At this stage, the Court must accept the factual allegations in the
Amended Complaint as true and must draw all reasonable inferences in favor of Plaintiff, see
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014), especially when Defendants fail to direct the
Courts’ attention to documents containing judicially noticeable facts.
While the Amended Complaint does not identify Plaintiff’s husband by name, the Court
infers from documents submitted by both parties that Andre Audige is Plaintiff’s husband.
Moreover, Plaintiff does not dispute Defendants’ statement that Andre Audige is her husband.
to Plaintiff. 5 (Id. ¶ 19.) From that point on, Plaintiff assumed the obligation of making payments
on the Note to Flushing Bank. (Id.)
On December 4, 2007, Flushing Bank commenced a foreclosure action as to the Brooklyn
Property (the “Foreclosure Action”) in New York State Supreme Court, Kings County, under
Index No. 44329/2007. (See Def. Ex. B (Judgment of Foreclosure and Sale); see docket for
Rossrock Fund II LP v. Toledo, No. 44329/2007 (N.Y. Sup. Ct.).) This Foreclosure Action was
brought against, inter alia, Plaintiff, Toledo, and Jody Ashton, who appears to be Plaintiff’s
daughter. 6 (See Def. Ex. B.) Plaintiff alleges that Rossrock has an arrangement with Flushing
Bank, where Flushing Bank “ensnare[s] and entrap[s] unwary and unwitting borrowers,” causing
them to default, thereby allowing Rossrock to acquire those mortgages at “a bargain price” once
they become delinquent. (Am. Compl. ¶ 23.) Plaintiff alleges that Rossrock engages in “wellorchestrated RICO activities.” (Id. ¶ 24.) On August 2, 2012, the court entered a Judgment of
Foreclosure and Sale (the “Foreclosure Judgment”). (See Def. Ex. B.) Plaintiff alleges that before
this occurred, Flushing Bank “failed to process mortgage payments on time, and then used it as an
excuse to charge late fees in order to initiate foreclosure proceedings.” (Am. Compl. ¶ 22.)
In 2007, Flushing Bank assigned the Note to Rossrock. (Id. ¶ 21.) Plaintiff alleges that
this assignment was “illegal,” “fraudulent,” and had “forgery [written] all over it.” (Id. ¶ 8.) 7
The Amended Complaint does not specify when Toledo deeded the property back to
Although the Amended Complaint does not allege any facts regarding Jody Ashton,
Defendants submitted a declaration attesting to Jody Ashton’s identity (see Dkt. 33-1 ¶ 8), and
Plaintiff does not dispute Defendants’ allegation that Jody Ashton is Plaintiff’s daughter.
Plaintiff more specifically alleges that the assignment was “illegally notarized” by
“Roxana Varella and Francis W. Korzekwinski [the executive Vice President of Flushing Savings
Bank] . . . See Exhibit ___[.]” (Am. Compl. ¶ 8.) Notably, there is a blank space next to the
“Exhibit” she cites to, and thus the Court cannot determine what, if any, exhibit Plaintiff proffers
in support of this assertion. Plaintiff further alleges that an unidentified court “further sanctioned
Starting in 2012, Plaintiff filed four Chapter 13 bankruptcy petitions in addition to an
adversary proceeding under the Federal Rules of Bankruptcy Procedure, Rule 7001. 8 On October
23, 2012, Boothe filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code in
the United States Bankruptcy Court for the Eastern District of New York (the “Bankruptcy
Court”). See docket for In re Claudette Boothe, No. 12-47480 (Bankr. E.D.N.Y.). On November
30, 2012—after Boothe filed a voluntary application for dismissal—the bankruptcy petition was
dismissed. (Id., Dkts. 14, 16.)
On January 29, 2014, Boothe filed a second Chapter 13 bankruptcy petition under case No.
14-40363 in the Bankruptcy Court. See docket for In re Claudette Boothe, No. 14-40363 (Bankr.
E.D.N.Y.). On February 7, 2014, Rossrock moved “for an order granting it relief from the
automatic stay pursuant to Sections 362(d)(1), (2) and (4) of the United States Bankruptcy Code .
. . .” (Id. Dkt. 34.) On May 6, 2014, the Bankruptcy Court granted the motion and permitted
Rossrock “to pursue all of its rights under applicable state law with respect to the property located
at 3221 Church Avenue, Brooklyn, New York 11226 . . . .” (Id.; Def. Ex. C (“Stay Relief Order”).)
The Bankruptcy Court further ordered that no future bankruptcy filing for the next two years would
stay any scheduled foreclosure sale. (Id. (“[T]his order shall be binding in any other case under
Title 11 purporting to affect [the Brooklyn Property] filed not later than 2 years after the date of
entry of this Order . . . .”).) Again, after Boothe’s application for dismissal of her petition, the
this behavior [of illegal notarization] by ignoring the evidence of the fraud when it was raised by
the plaintiff on many occasions.” (Id. ¶ 12.)
Rule 7001 of the Federal Rules of Bankruptcy Procedure defines an “adversary
proceeding” to include ten types of proceedings and includes, for example, any action where the
plaintiff seeks determination of “the validity, priority, or extent of a lien or other interest in
property,” or determination of “dischargeability of debt.”
second bankruptcy petition was dismissed on November 18, 2014. See docket for In re Claudette
Boothe, No. 14-40363 (Bankr. E.D.N.Y.).
On June 17, 2015, Boothe filed her third voluntary petition in the Bankruptcy Court for
relief under Chapter 13 of the Bankruptcy Code. That case was dismissed on August 21, 2015, for
failure to make plan payments. See the docket for In re Boothe, No. 15-42833 (Bankr. E.D.N.Y.).
The case was terminated on February 9, 2016. Id.
On November 2, 2016, Boothe also filed a suit in the Bankruptcy Court against the same
Defendants in this case alleging, inter alia, false pretenses, false representation, fraud, and willful
and malicious injury. See docket for Boothe v. Rossrock Funds II LP, No. 1-16-01175 (Bankr.
E.D.N.Y.). The Bankruptcy Court held a hearing on December 20, 2016, and the case was closed
on April 7, 2017. Id. 9
In addition to her filings in the Bankruptcy Court, Plaintiff also filed three other actions in
this Court relating to the Brooklyn Property. On July 13, 2015, Plaintiff appealed the Bankruptcy
Court’s decision in bankruptcy case No. 15-42833. See docket for Boothe v. Rossrock Fund II LP,
No. 15–cv–04099 (E.D.N.Y.). On December 17, 2015, Boothe filed an emergency motion seeking
immediate stay of the sale of the Brooklyn Property and asking this Court to void the Foreclosure
Judgment. (Id. Dkt. 10.) By the time this Court had issued an order directing that the sale of the
Brooklyn Property be stayed to the extent that the sale had not yet occurred (see id. 12/17/2015
Order (the “December 17 Order”)), Rossrock had successfully bid on the property. (Id. 12/23/2015
Order). 10 Plaintiff alleges that on December 17, 2015, Defendants conspired with the referee at
It appears that no written opinion was issued by the Bankruptcy Court as one is not
available on the Bankruptcy Court’s Docket.
Defendants allege that “[o]n December 1, 2015, . . . [Judge Partnow] issued a temporary
restraining order which . . . directed that any application, order to show cause, motion or request
for a temporary restraining order seeking to stay, cancel, or otherwise affect the foreclosure sale
the foreclosure auction and “illegally sold” the Brooklyn Property. (Am. Compl. ¶ 32.)11 On
January 14, 2016, this Court clarified that the December 17 Order “did not take effect because it
was issued after the [foreclosure] sale had already occurred. Nevertheless, the Court issued a new
stay preventing transfer of [the Brooklyn Property] until January 26, 2016,” based on the parties’
representation that the State court was to resolve Plaintiff’s challenge to the foreclosure sale by
that date. (Id. 1/14/2016 Minute Entry.) On January 22, 2016, the Court dismissed Plaintiff’s
bankruptcy appeal finding that it lacked subject matter jurisdiction and “terminat[ed] its January
14, 2016 stay preventing transfer of [ ] [the Brooklyn Property] and all other restrictions on
Rossrock’s possession of the property.” (Id. 1/22/2016 Order.)
On January 26, 2016, in an action commenced by Plaintiff’s husband, Andre Audige, in
New York Supreme Court, the Honorable Mark Partnow issued an order confirming that Rossrock
was the owner of the Brooklyn Property. (Def. Ex. F.) However, on February 8, 2016, the Civil
Court of the City of New York, Kings County, Housing Part O (“Civil Court”) issued a
Decision/Order After Inquest (“February 8 Order”), which noted that Boothe represented to the
Civil Court that she, her daughter (Jody Ashton), and her husband (Andre Audige) were the owners
of the Brooklyn Property, that Plaintiff had resided at the property for at least three years, and that
Rossrock merely had a lien against the property. (Def. Ex. G at 2.) Plaintiff represented to the
of the Brooklyn Property be presented only to Hon. Mark I. Partnow for consideration (the
“December 1 TRO”).
Additionally, Plaintiff includes a myriad of other accusations unaccompanied by any
factual allegations; for instance, that: (1) the Note assignment was “notarized by a notary who
never witnessed the signatures that they notarized” (id. ¶ 31), (2) mortgage and note assignments
or foreclosure documents were fabricated (id. ¶¶ 29–31), (3) Rossrock reneged on some
unidentified “agreement[s]” with Plaintiff (id. ¶ 28), and (4) Rossrock used fraudulent mortgage
assignments and fraudulent documents to foreclose on “hundreds of commercial properties in and
around Brooklyn” (id. ¶ 29).
Civil Court that on February 4, 2016, Plaintiff was locked out of the Brooklyn Property by
Rossrock. (Id.) Moreover, Plaintiff represented to the Civil Court that “she [was] not the subject
of a current or former summary proceeding with the named respondents or any parties which
provided for a final judgment of possession.” (Id.) Based on Plaintiff’s representation, the Civil
Court awarded Boothe possession of the Brooklyn Property. (Id. at 3.)
Then on February 22, 2016, Judge Partnow, who presided over the Foreclosure Action,
vacated the February 8 Order by the Civil Court finding, inter alia, that Boothe had not properly
served Rossrock in seeking repossession of the Brooklyn Property. 12 (Def. Ex. H.) In an order
dated February 23, 2016 (“February 23, 2016 Order”), Judge Partnow scheduled a contempt
hearing for May 3, 2016, 13 and directed the clerk of the court to “reject any application seeking to
affect the foreclosure sale of [the Brooklyn Property] . . . conducted on December 17, 2015, or
which seeks to affect Rossrock[’s] . . . rights as owner of [the property] . . . without prior leave of
the Honorable Mark I. Partnow.” (Def. Ex. I at 1–2.) The order further stated, “Claudette Boothe,
Jody Ashton[,] and any other person with notice of this order are hereby prohibited from filing any
motions, applications, orders to show cause or any other requests for relief in any court other than
the Supreme Court of King County[,] which seek[s] to affect Rossrock[’s] rights as the owner of .
. . [the Brooklyn Property] . . . , without any prior permission of [Judge Partnow.]” (Id. at 2.)
Nevertheless, that same day, Boothe filed the instant action. (Dkt. 1 of No. 16–cv–900.)
On April 18, 2016, Boothe, Ashton, Audige, and other named individuals and entities filed
a notice of removal with this Court seeking to remove Rossrock’s State court action against them
The February 22, 2016 Order also states that “Any new case brought [by Boothe] must
take into account the [previous] Supreme Court Orders.” (Def. Ex. H.) However, it is unclear as
to which Supreme Court Orders the February 22, 2016 Order refers to.
The parties have not provided facts as to the outcome of the contempt hearing.
that was before Judge Partnow. See Rossrock Funding II LP v. Boothe, No. 16–cv–1878, 2016
WL 1588117 (E.D.N.Y. Apr. 20, 2016). Rossrock alleged, in its State court complaint, that
Boothe, Ashton, and Audige had “executed various documents falsely claiming to be record
owners of [the Brooklyn Property] . . . after title . . . had been transferred to [ ] Rossrock” following
the foreclosure sale. Id. at *1. This Court remanded the case back to the State court, finding that
there was an insufficient factual relationship between the State court action and the instant federal
action. (See 4/20/2016 Order Remanding Case in No. 16–cv–1878.) On May 3, 2016, the Court
denied Boothe and the other plaintiffs’ motion for reconsideration. (See 5/3/2016 Order in No.
On October 3, 2016, Boothe filed her fourth voluntary petition for relief under Chapter 13
of the Bankruptcy Code in the Bankruptcy Court. See docket for In re Boothe, No. 1-16-44465
(Bankr. E.D.N.Y.). 14 The case was dismissed on December 6, 2016, after Plaintiff did not file the
required documents. See id., Dkt. 21.
On December 13, 2016, Plaintiff again appealed the Bankruptcy Court decision dismissing
her case No. 16-44465 to this Court. See docket for In Re: Claudette Boothe, No. 16–cv–06862
(E.D.N.Y.). The Court sua sponte dismissed the case on March 3, 2017, as Boothe never filed a
brief in support of her appeal and did not communicate with the Court for three months after filing
the appeal. (3/3/2017 Order in No. 16–cv–6862.)
Additionally, on October 3, 2013, Jody Ashton, Plaintiff’s daughter, also filed a
voluntary petition for relief under Chapter 13 of the Bankruptcy Code in the Bankruptcy Court.
See docket for In re Ashton, No. 1-13-46027 (Bankr. E.D.N.Y.). Ashton listed 3221 Church Ave.
Brooklyn, N.Y., the address of the Brooklyn property, as her address.
Procedural History in the Instant Case
Plaintiff filed the Complaint in this action on February 23, 2016. (Dkt. 1 in No. 16–cv–
900 (E.D.N.Y.).) The same day, she also filed a motion for a temporary restraining order seeking
to stay the foreclosure sale of the Brooklyn Property. Because there was no showing in the record
that Plaintiff had served Defendants with the summons and Complaint, the Court directed Plaintiff
to do so. (2/24/2016 Order in 16–cv–900.) Plaintiff filed an Amended Complaint on March 9,
2016. Less than a week later, on March 15, 2016, Plaintiff filed a motion for leave to file a second
amended complaint. The Court directed Plaintiff to file a second amended complaint by April 4,
2016. (3/16/2016 Order in 16–cv–900). However, Plaintiff never filed a second amended
complaint. On March 23, 2016, Plaintiff filed another motion for a temporary restraining order
and preliminary injunction seeking, inter alia, to set aside the foreclosure sale that had occurred
on December 17, 2015. (See 3/25/2016 Order in 16–cv–900.) The Court denied Plaintiff’s motion
explaining, inter alia, that this Court does not have jurisdiction to review the order of foreclosure
issued in Plaintiff’s State court proceeding. (Id.) The Court further directed Plaintiff to show
cause that she had complied with Judge Partnow’s February 23, 2016 Order. (See id.) Plaintiff
never complied with that Order. On August 1, 2016, Defendants’ joint motion to dismiss was fully
Rule 12(b)(1) of the FRCP provides for the dismissal of a claim over which the Court lacks
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “In resolving a motion to dismiss for lack of
subject matter jurisdiction under Rule 12(b)(1), a district court . . . may refer to evidence outside
the pleadings.” Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting subject
matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.”
Under Rule 12(b)(6) of the FRCP, a defendant may move to dismiss a complaint that
“fail[s] to state a claim upon which relief can be granted.” Although courts must read pro se
complaints with “special solicitude” and interpret them to raise the “strongest arguments that they
suggest,” Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474–76 (2d Cir. 2006) (per
curiam) (quotations omitted), a complaint must plead “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl.Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 556). In ruling on a 12(b)(6) motion, a court must
accept the factual allegations set forth in the complaint as true and must draw all reasonable
inferences in favor of the plaintiff. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). However,
that “‘tenet is inapplicable to legal conclusions,’ and ‘[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.’” Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. at 668). A complaint that “tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Iqbal, 556 U.S. at 678
(quoting Twombly, 555 U.S. at 557). Rather, “[f]actual allegations must be enough to raise a right
to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. A complaint should be
dismissed where a plaintiff has not “nudged [its] claims across the line from conceivable to
plausible[.]” Id. at 570.
The Court Lacks Subject Matter Jurisdiction
Having reviewed the parties’ submissions and the extensive litigation history surrounding
the Brooklyn Property, the Court finds that it lacks subject matter jurisdiction over this case under
the Rooker–Feldman doctrine. Under this doctrine, federal district and circuit courts lack subject
matter jurisdiction over cases that essentially are appeals from State court judgments. Hoblock v.
Albany Cnty. Bd. of Elecs., 422 F.3d 77, 84 (2d Cir. 2005); see also Kropelnicki v. Siegel, 290 F.3d
118, 128 (2d Cir. 2002) (“[T]he Rooker–Feldman doctrine bars lower federal courts from
exercising jurisdiction over claims that are ‘inextricably intertwined’ with state court
determinations.” (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482–83 n. 16 (1983))).
The doctrine applies where a four-prong test is satisfied: (1) the federal court plaintiff lost in State
court; (2) the plaintiff complains of injuries caused by a State court judgment; (3) the plaintiff
invites district court review and rejection of that judgment; and (4) the State court judgment was
rendered before the district court proceedings commenced. Green v. Mattingly, 585 F.3d 97, 101
(2d Cir. 2009). “Courts in this Circuit have consistently held that the Rooker–Feldman doctrine
bars an attack on the judgment of a foreclosure action in state court.” Gurdon v. Bank, No. 15–
cv–5674, 2016 WL 721019, at *10 (S.D.N.Y. Feb. 23, 2016) (collecting cases), report and
recommendation adopted by 2016 WL 3523737, at *5 (E.D.N.Y. Jun. 20, 2016).
Here, all four Rooker–Feldman requirements are met. First, Plaintiff lost in the State court
Foreclosure Action (Def. Ex. B). See Gunn v. Ambac Assur. Corp., No. 11–cv–5497, 2012 WL
2401649, at *12 (S.D.N.Y. Aug. 6, 2012) (finding the first requirement of Rooker–Feldman
satisfied where the State court foreclosure proceeding concluded with plaintiff’s loss of ownership
or possession of property), report and recommendation adopted by 2012 WL 3188849 (S.D.N.Y.
Aug. 6, 2012).
Second, Plaintiff is complaining of the loss of ownership of the Brooklyn Property caused
by the judgment rendered by the State court in the Foreclosure Action (see Am. Compl. at ECF 7
¶ 37). 15 Plaintiff identifies the “nature of the case” to stem from the allegedly “fraudulent transfer”
of the Brooklyn Property. (See Am. Compl. at ECF 2.) In an all too transparent effort to avoid
the application of the Rooker-Feldman doctrine, Plaintiff asserts that she is “not really complaining
of an injury caused by a state-court judgment, but of an injury caused by the winner’s chicanery.”
(Dkt. 32 (Pl. Opp.) at ECF 6 ¶ 21.) Regardless of the label Plaintiff uses to describe the outcome
of the Foreclosure Action, there is no question that Plaintiff is complaining of a State court
judgment. For example, Plaintiff alleges, “[d]ue to gross judicial misconduct[,] my property
preservations [sic] of my claims and property interest eroded by the unjust decision of the trial
judge in dated February 23rd 2016.” (Am. Compl. at ¶ 37 (emphasis added).) As next discussed,
the remedy Plaintiff seeks in this action further supports the Court’s finding that Plaintiff is
complaining of the State court’s judgment in the Foreclosure Action.
Third, Plaintiff expressly invites this Court to reverse the Foreclosure Judgment, to “set
aside the fraudulent transfer of [her] property” (id. at ¶ 1), to “set aside the referee’s deed for
fraudulent conveyance” (id. at ECF 13 (Section for “Prayer For Relief”)), and to enter “judgment
for the immediate restoration of plaintiff in possession of the quiet use and enjoyment of [the
Brooklyn] property; set aside the [December 17] foreclosure auction . . . [and] to stay all
proceedings in state court” (id. at ECF 16).
Fourth, the State court’s Judgment of Foreclosure and Sale was entered on August 2, 2012,
before Plaintiff commenced this action on February 23, 2016 (Def. Ex. B).
In sum, because each of the requirements of Rooker–Feldman has been satisfied, this Court
lacks subject matter jurisdiction to consider Plaintiff’s claims. See Vossbrinck v. Accredited Home
Citations to “ECF” refer to the pagination generated by the Court’s electronic docketing
system and not the document’s internal pagination.
Lenders, Inc., 773 F.3d 423, 427 (2d Cir. 2014) (“To the extent [plaintiff] asks the federal court to
grant him title to his property because the foreclosure judgment was obtained fraudulently,
Rooker–Feldman bars [plaintiff’s] claim. [Plaintiff] invites review and rejection of the state
judgment.” (internal quotation and alterations omitted)); Swiatkowski v. New York, 160 F. App’x
30, 32 (2d Cir. 2005) (summary order) (concluding that plaintiff’s complaint “concerns allegations
of various civil and constitutional rights violations but essentially amount[ed] to an objection to
the disposition of the foreclosure action by the Supreme Court, Nassau County”); Swiatkowski v.
Bank of America, NT & SA, 103 F. App’x 431, 432 (2d Cir. 2004) (affirming district court’s
dismissal, based on the Rooker–Feldman doctrine, of borrower’s complaint against mortgage
lenders alleging that defendants rejected their mortgage payments in violation of a settlement plan,
conspired to force plaintiffs to leave their home, “deceived the court,” and initiated a foreclosure
action, i.e., allegations that are nearly identical to those in Plaintiff’s Amended Complaint); see
also Hall v. Bank of N.Y. Mellon, No. 15–cv–7156, 2017 WL 1030710, at *4 (E.D.N.Y. Mar. 13,
2017) (finding that plaintiff’s [ ] action was barred by the Rooker–Feldman doctrine where plaintiff
alleged that defendants “violently terminate[d] his property rights protected in the original United
States Constitution . . . without due process, and engaged in . . . intentional violation of established
federal laws” where plaintiff had lost in his State court foreclosure action (internal quotation marks
omitted)). The point of the Rooker-Feldman doctrine is that because Plaintiff had the opportunity
to assert the claims or defenses relating to the foreclosure in State court, this Court should not
disturb the State court’s decision on those issues or any other issues or claims that would
undermine or disturb that decision.
While Plaintiff frames her claims to be based on violations of constitutional rights, this is
a desperate attempt to bring, once again, a lawsuit challenging the foreclosure of the Brooklyn
Property. 16 In spite of the Court’s March 26, 2016 Order, in which the Court explained that it
lacks jurisdiction to review the State court’s order of foreclosure because of the Rooker–Feldman
doctrine, the only remedy Plaintiff seeks in this “civil rights” case is the “restoration of [her]
possession of [the Brooklyn Property]” and asks this Court to “set aside the foreclosure auction
[which transferred ownership of the Brooklyn property to Rossrock] . . . [and] stay all proceedings
in the state court.” (Am. Compl. at ECF 16). “[I]t is abundantly clear that the whole purpose of
this action is to stop and undo the foreclosure judgment.” Swiatkowski v. Citibank, 745 F. Supp.
2d 150, 165 (E.D.N.Y. 2010); see also Wik v. City of Rochester, 632 F. App’x 661, 661 (2d Cir.
2015) (summary order) (affirming district court’s dismissal, pursuant to the Rooker–Feldman
doctrine, of plaintiff’s Section 1983 complaint where plaintiff’s real property had been foreclosed
on for non-payment of taxes and where State courts had issued a foreclosure order and an order
denying plaintiff’s motion to vacate the foreclosures); Ashby v. Polinsky, 328 F. App’x 20, 20–21
(2d Cir. 2009) (summary order) (affirming district court’s dismissal of plaintiff’s Section 1983
complaint pursuant to the Rooker–Feldman doctrine when plaintiff complained of the foreclosure
on her property caused by a State court order); accord Murphy v. GE Capital Asset Corp., 38 F.
App’x 86, 86–87 (2d Cir. 2002) (affirming district court’s finding that plaintiff’s suit brought under
To the extent that Plaintiff intended to raise a RICO claim by conclusorily mentioning
the act, the Rooker–Feldman doctrine still bars review of the claim. Pharr v. Evergreen Garden,
Inc., 123 F. App’x 420, 423 n.2 (2d Cir. 2005) (“While it is true that plaintiffs never actually raised
the federal claims of Section 1983, RICO and SLAPP violations before the state court, Rooker–
Feldman precludes district court reviews of claims ‘inextricably intertwined’ with state court
determinations. The fact that plaintiffs raise new claims under federal statutes does not preclude
a finding that they are barred by the Rooker–Feldman doctrine.” (quoting Zipper v. Tood, No. 96–
cv–5198, 1997 WL 181044, at *3 (S.D.N.Y. Apr. 14, 1997)). Moreover, the Amended Complaint
does not sufficiently plead civil RICO allegations. See Spiteri v. Russo, 12–cv–2870, 2013 WL
4806960, at *45 (E.D.N.Y. Sept. 7, 2013) (“Courts look with particular scrutiny at claims for a
civil RICO, given the statute’s damaging effects on the reputations of individuals alleged to be
engaged in RICO enterprises and conspiracies.”).
RICO was barred by the Rooker–Feldman doctrine where plaintiff “alleged that the defendants
had fraudulently foreclosed a mortgage on his property by presenting fraudulent mortgage
documents to the state courts and by deliberately failing to provide him with proper notice of the
foreclosure action”); id. (noting that the Rooker-Feldman doctrine “covers both matters directly
decided in the state court and matters ‘inextricably intertwined’ with the determinations of the state
To the extent that Plaintiff is claiming that the State court acted unconstitutionally by
entering a Foreclosure Judgment, by finding Rossrock to be the rightful owner of the Brooklyn
Property, or by vacating the Civil Court’s February 8 Order, Plaintiff should have appealed those
decisions in State court. See Swiatkowski, 745 F. Supp. 2d at 170.
Accordingly, the Court grants Defendants’ motion to dismiss this action pursuant to Rule
12(b)(1) for lack of subject matter jurisdiction.
Section 1983 Claims Are Inadequately Pleaded
Even if the Court had found that Rooker-Feldman does not apply to this case and that the
Court has jurisdiction over this matter, it would dismiss Plaintiff’s claims, alleging due process
and equal protection violations under 42 U.S.C. § 1983 (“Section 1983”), for failure to state a
claim. Fed. R. Civ. P. 12(b)(6).
Amended Complaint fails to adequately allege State action by Defendants
Section 1983 provides a cause of action for anyone subjected “to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws” by a person acting under
color of State law. 42 U.S.C. § 1983. “[T]he core purpose of § 1983 is ‘to provide compensatory
relief to those deprived of their federal rights by state actors.’” Hardy v. N.Y. City Health & Hosps.
Corp., 164 F.3d 789, 795 (2d Cir. 1999) (emphasis added). In other words, Section 1983
“constrains only [government] conduct, not the ‘acts of private persons or entities.’” Hooda v.
Brookhaven Nat. Lab., 659 F. Supp. 2d 382, 393 (E.D.N.Y. 2009) (quoting Rendell-Baker v. Kohn,
457 U.S. 830, 837 (1982)). Private conduct, “no matter how discriminatory or wrongful,” is
generally beyond the reach of Section 1983. Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40,
50 (1999) (quotations omitted); Gault v. NYPD, No. 15–cv–935, 2016 WL 3198281, at *2
(E.D.N.Y. Jun. 8, 2016).
Here, Rossrock, Flushing Bank, and Jaspan Schlesinger LLP are private corporations, and
thus, are not State actors for purposes of 42 U.S.C. § 1983. See, e.g., Brown v. Chase Bank, No.
13–cv–5309, 2013 WL 5537302, at *2 (E.D.N.Y. Oct. 17, 2013) (noting that private corporations
do not act under color of State law and dismissing plaintiff’s Section 1983 claims against banks).
Moreover, every one of the named individual Defendants, who are Rossrock employees or
attorneys employed by the law firm representing Rossrock, are private individuals whose conduct
is not attributable to the State. Thus, to succeed on her Section 1983 claims, Plaintiff must, as a
threshold matter, establish that the challenged conduct of Defendants was taken under color of
“The traditional definition of acting under color of state law requires that the defendant . .
. have exercised power possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.” Kia P. v. McIntyre, 235 F.3d 749, 755–56
(2d Cir. 2000) (citation omitted). This Circuit has recognized three scenarios in which the conduct
of a nominally private entity may be attributed to the State—where: “(1) the entity acts pursuant
to the ‘coercive power’ of the state or is ‘controlled’ by the state (“the compulsion test”); (2) when
the state provides ‘significant encouragement’ to the entity, the entity is a ‘willful participant in
joint activity with the [s]tate,’ or the entity’s functions are ‘entwined’ with state policies (‘the joint
action test’ or ‘close nexus test’); or (3) when the entity ‘has been delegated a public function by
the [s]tate,’ (‘the public function test’).” Sybalski v. Indep. Grp. Home Living Prog., Inc., 546 F.3d
255, 257 (2d Cir. 2008) (alterations in original) (citing Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 296 (2001)).
The Amended Complaint asserts its claims against the strictly private Defendants and
utterly fails to allege that Defendants’ actions are attributable to the State. While Plaintiff has a
myriad of conclusory allegations that Defendants conspired with “the court system,” a trial judge,
members of the New York Police Department (“NYPD”) and the “building department” to evict
Plaintiff from the Brooklyn Property, to “issue fines and/or violations,” to “commit extrinsic fraud
on the State of New York Courts,” “to cause [Plaintiff] to be jailed,” and to “assassinate
[Plaintiff’s] character,” these conclusory statements are insufficient for Plaintiff to plausibly allege
that Defendants acted under color of State law. (Am. Compl. ¶¶ 35, 37, 3958, 59–60, 63, 66–68,
70.) She also alleges that “Rossrock . . . chose to commit more violations including the unlawful
use of Force, Threat, duress by twisting the law” by using the NYPD to “illegally and forcefully
evict plaintiff from her building without due process at law” (Id. ¶ 58) and that she has “captured
video footage of some of the NYPD officers . . . aiding and abetting Gill Castro[,] the enforcer of
Rossrock [ ] Criminal Corporate Enterprise and what appears to be police friends of Gill Castro
acting as if they have a personal stake” in evicting Plaintiff (Id. ¶ 59). However, Plaintiff does not
allege when or how the NYPD used force against her or threatened her. She does not allege what
actions of the Defendants or the NYPD should be construed as “extrinsic fraud” or conduct
attempting to jail her or “assassinate” her character. The content of the video footage that
purportedly recorded NYPD aiding and abetting Rossrock in their illegal enterprise is not
described or mentioned in the Amended Complaint. While Plaintiff makes many allegations, they
are all conclusory and they do not plausibly allege that Defendants acted under color of State law.
Indeed, given the existence of the State court order of foreclosure against Plaintiff with respect to
the Brooklyn Property, the only plausible inference that can be drawn, even assuming arguendo,
that NYPD officers assisted in Plaintiff’s eviction is that the officers were acting lawfully pursuant
to the State court eviction order. Therefore, Plaintiff’s failure to adequately allege facts in support
of her Section 1983 claims provides an additional basis for dismissal. 17
Section 1985 Conspiracy Claim Is Inadequately Pled
Plaintiff also asserts a conspiracy claim under 42 U.S.C. § 1985(3) (“Section 1985(3)”).
Plaintiff’s conclusory allegations are also insufficient to state a plausible claim of conspiracy under
Section 1985(3). “Section 1985 permits an individual to bring suit for injuries incurred due to
conspiracies formed ‘for the purpose of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws.”’ Roffman v. City of N.Y., No. 01–cv–8601, 2002 WL 31760245, at *5 (S.D.N.Y. Dec. 10,
2002) (citing 42 U.S.C. § 1985(3)). To state a claim under Section 1985(3), a plaintiff must allege
“four elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and immunities
under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either
Furthermore, the Amended Complaint is devoid of any facts plausibly suggesting that
Defendants violated Plaintiff’s due process rights or equal protection rights. As for Plaintiff’s
abuse of process claim, Plaintiff alleges that Defendants “enlist[ed] the NYPD to arrest and [to]
threaten to jail the plaintiff in contempt of court [ ] simply for attempting to protect and exercise
her constitutionally protected rights.” (Am. Compl. at ¶ 63.) However, other than her conclusory
statements, Plaintiff does not provide allegations of when she was arrested, who took part in her
arrest, who threatened her with imprisonment for being in contempt of court, or any other
circumstances surrounding such threats of arrest.
To the extent that Plaintiff intended to assert a tort claim of abuse of process that is based
on State law, see E. Equip & Servs. Corp. v. Factory Point Nat’l Bank, et al., 236 F.3d 117, 119
(2d Cir. 2001) (per curiam), as discussed surpa and infra, the Court does not have jurisdiction to
hear Plaintiff’s State law claim.
injured in his person or property or deprived of any right or privilege of a citizen of the United
States.” Robinson v. Allstate Ins. Co., 508 F. App’x 7, 9 (2d Cir. 2013) (summary order) (quoting
United Bhd. of Carpenters v. Scott, 463 U.S. 825, 828–29 (1983)).
Even under a liberal reading of the Amended Complaint, it is plainly devoid of factual
allegations demonstrating that there was any agreement or meeting of the minds by or amongst
Defendants to deprive Plaintiff of equal protection of the law. See Webb v. Goord, 340 F.3d 105,
110 (2d Cir. 2003) (“In order to maintain an action under Section 1985, a plaintiff must provide
some factual basis supporting a meeting of the minds, such that defendants entered into an
agreement, express or tacit, to achieve the unlawful end.” (citation and internal quotation marks
omitted)); Nguyen v. Milliken, 104 F. Supp. 3d 224, 231 (E.D.N.Y. 2015) (dismissing pro se
plaintiff’s Section 1985(3) claim where there was no basis to find that the alleged conspiracy
stemmed from invidiously discriminatory animus or that there was a “meeting of the minds”). At
most, Plaintiff alleges that some of the individual Defendants—specifically, Frank Delmore and
Kevin Etzel, employees of Jaspan Schlesinger, and Rossrock—conspired with NYPD Officers 18
Welch, Martinez, and Gonzalez “by violating laws and duties” and by committing “extrinsic fraud
on the State of New York Courts.” (Am. Compl. ¶¶ 66–67.) These conclusory allegations are not
enough. See Cullen v. City of New York, No. 07–cv–3644, 2011 WL 1578581, at *4 (E.D.N.Y.
Apr. 26, 2011) (“Vague and conclusory allegations that defendants have engaged in a conspiracy
must be dismissed.”); Tsabbar v. Eason, No. 04–cv–10215, 2005 WL 2298177, at *2 (S.D.N.Y.
Sept. 20, 2005) (finding plaintiff’s allegations conclusory and dismissing his Section 1983 claim
The Amended Complaint does not identify these officers by their full name or name
them as defendants. Plaintiff only refers to them as “proposed Defendants” and alleges that the
named Defendants “used the court system acting under color of state law to enlist the NYPD to
arrest and threaten to jail [her] in contempt of court [ ] simply for attempting to protect and exercise
her constitutionally protected rights.” (Am. Compl. at ECF 13 ¶ 63.)
where the complaint alleged that defendant and the New York City Sheriff conspired to deprive
plaintiff of his personal property and to damage items in plaintiff’s apartment in the process of
Moreover, Plaintiff fails to allege “some racial or perhaps otherwise class-based, invidious
discriminatory animus [underlying Defendants’ actions],” as required for her Section 1985 claim.
Robinson, 508 F. App’x at 9 (quoting Britt v. Garcia, 457 F.3d 264, 270 n.4 (2d Cir. 2006))
(internal quotation marks omitted).
In sum, Plaintiff has failed to state a claim under either Section 1983 or 1985(3). The
Court, therefore, grants Defendants’ motion to dismiss both Plaintiff’s Section 1983 and 1985(3)
The Court Declines to Exercise Supplemental Jurisdiction Over Plaintiff’s State
Counts 3 and 4 of the Amended Complaint are State law claims based on the New York
State and New York City False Claims Act. Because the Court does not have subject matter
jurisdiction over Plaintiff’s federal claims, the Court declines to exercise supplemental jurisdiction
over her State law claims. See Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d
Cir. 2008) (“We have already found that the district court lacks subject matter jurisdiction over
appellants’ federal claims. It would thus be clearly inappropriate for the district court to retain
jurisdiction over the state law claims when there is no basis for supplemental jurisdiction.”); see
also Swiatkowski, 745 F. Supp. 2d at 173 n.14 (stating that “the Court declines to retain jurisdiction
As the Court finds that Plaintiff has not stated plausible Section 1983 or 1985(3) claims,
the Court need not address Defendants’ two-sentence, throw-away argument that Plaintiff is
collaterally estopped from bringing her Section 1983 and 1985(3) claims. (Dkt. 33, Def. Mem. at
over any remaining state law claims plaintiff is attempting to assert given the absence of any
federal claims that survive” after dismissing plaintiff’s federal claims based on the Rooker–
Feldman doctrine, collateral estoppel, and res judicata). 20
Amendment of the Complaint Would be Futile
Plaintiff will not be allowed to amend her complaint a second time because any amendment
would be futile, given that dismissal is warranted based on jurisdictional grounds.
Cunningham v. Bank of N.Y. Mellon N.A., No. 14–cv–7040, 2015 WL 4104839, at *4 (E.D.N.Y.
Jul. 8, 2015) (denying pro se leave to replead after dismissal under Rooker–Feldman); Gunn v.
Ambac Assur. Corp., No. 11–cv–5497, 2012 WL 3188849, at *3 (S.D.N.Y. Aug. 6, 2012)
(adopting a report and recommendation and denying plaintiff leave to amend because recasting the
claims or adding other parties “would not change the gravamen of his complaint, which is to
overturn the state court foreclosure proceeding”). In light of Plaintiff’s request, on March 16,
2016, this Court gave Plaintiff leave to file a second amended complaint by April 4, 2016, but
Plaintiff never filed one. (See 4/11/2016 Order.) The Court explained that Plaintiff was precluded
from amending her complaint after April 4, 2016, absent a showing of good cause. (Id.) Plaintiff’s
statement in her opposition to Defendants’ motion that she “reserves all of her rights to amend her
complaint” (see Dkt. 32 at ECF 7 ¶ 25) does not meet the requisite showing of good cause. See
Babb v. Capital source, Inc., 588 F. App’x 66, 68–69 (2d Cir. 2015) (“Because plaintiffs were
alerted to the deficiencies in their complaint at a pre-motion conference before filing the [second
To the extent that Plaintiff raises a common law fraud claim, “[a]lthough a claim of fraud
may preclude the Court from applying Rooker–Feldman, it does so only when the complaint ‘does
not attempt to reverse or undo a state court judgment.’” Barbato v. U.S. Bank Nat’l Assoc., 14–
cv–2233, 2016 WL 158588, at *3 (S.D.N.Y. Jan. 12, 2016) (quoting Babb v. Capitalsource, Inc.,
588 F. App’x 66, 68 (2d Cir. 2015)). As previously discussed, the remedy that Plaintiff seeks for
every claim is that the Court undo the State court foreclosure judgment. Thus, Plaintiff’s fraud
claim is also barred by the Rooker–Feldman doctrine.
amended complaint], and because the district court was clear at that conference that it would not
allow plaintiffs any more amendments after the [second amended complaint], the denial of another
attempt to amend was not an abuse of discretion.”).
Plaintiff is Enjoined from Filing Further Submissions Related to the Brooklyn
Property or the named Defendants
“When a litigant files numerous complaints based on the same events, the Court may issue
an injunction preventing the litigant from future filing in the venue without permission from the
Court.” Weaver v. Vaughn, No. 11–cv–3281, 2012 WL 4465255, at *9 (E.D.N.Y. Aug. 30, 2012)
(citing Malley v. N.Y. City Bd. of Educ., 112 F.3d 69, 69 (2d Cir. 1997)). This is the third action
that Plaintiff has brought in this Court in relation to the Brooklyn Property and the foreclosure sale
of that property. There is a demonstrated pattern of Plaintiff and her family members repeatedly
filing actions in this Court, the New York State Supreme Court, and the Bankruptcy Court, all for
the singular purpose of blocking the foreclosure sale of the Brooklyn Property and opposing
Rossrock’s ownership of the property. Furthermore, Plaintiff has demonstrated a willingness to
make false and/or baseless assertions and representations in court filings and to flagrantly disregard
and disobey court orders and directives. For example, this Court directed Plaintiff to show cause
by April 4, 2016, that she complied with Judge Partnow’s February 23, 2016 order requiring her
to seek prior permission from Judge Partnow before filing any motion in any court other than the
Supreme Court of Kings County that would affect Rossrock’s rights as the owner of the Brooklyn
Property. (See March 26, 2016 Order.) Plaintiff never complied with this directive. Instead,
Plaintiff submitted eight exhibits along with an “Affidavit,” in which she stated, “I do not consent
to give up my unalienable rights and be denied due process,” and went on to state that “some of
the [State court] judges[’] orders have been authored by Rossrock . . . .” (Dkt. 27, at ECF 1–2.)
There is no question that Plaintiff’s litigation history has caused a waste of judicial resources. In
addition to Plaintiff’s Complaint and Amended Complaint, Plaintiff has filed with this Court two
motions for Temporary Restraining Order (Dkts. 2, 12), a supplemental affidavit and memorandum
(Dkt. 23), and non-responsive submissions with numerous exhibits in response to the Court’s
directive to show cause that Plaintiff complied with Judge Partnow’s February 23, 2016 Order.
Plaintiff has also filed at least four actions in Bankruptcy Court. By filing numerous frivolous
actions and motions in this Court, the Bankruptcy Court, and State court, Plaintiff has stayed
multiple scheduled foreclosure sales. See, e.g., In re Claudette Boothe, No. 12-47480-608 (Bankr.
E.D.N.Y.); In re Claudette Booth, No. 14-40363 (Bankr. E.D.N.Y.); In re Boothe, No. 16-44465
(Bankr. E.D.N.Y.). And at least in one instance, Plaintiff voluntarily dismissed the case soon after
filing her bankruptcy petition. See docket for In re Claudette Boothe, No. 12-47480-608 (Bankr.
E.D.N.Y.) (less than two months after filing the petition).
“[T]he unequivocal rule in this circuit is that the district court may not impose a filing
injunction on a litigant sua sponte without providing the litigant with notice and an opportunity to
be heard.” Lau v. Meddaugh, 229 F.3d 121, 123 (2d Cir. 2000) (citation and internal quotation
marks and alterations omitted). Here, Defendants have specifically requested in their motion to
dismiss that this Court impose a filing injunction on Plaintiff. (See Dkt. 33–11 at 24, No. 16–cv–
900.) Because Plaintiff was served with Defendants’ motion (see Dkt. 31, No. 16–cv–900), she
was given notice of Defendants’ request for a filing injunction, and had the opportunity to respond
to the filing injunction request. Indeed, Plaintiff has responded, asserting that “Defendants are not
entitled to an injunction as [it] will only further support the deprivation of plaintiff’s right to access
the courts.” (Dkt. 32 at ECF 5 ¶ 12.) Based on this notice and opportunity to be heard, as well as
the history of Plaintiff’s undeterred abuse and manipulation of the judicial process, the Court finds
that there is no justification or need for Plaintiff to be given another opportunity or additional time
to respond to Defendants’ filing-injunction request. See Malcolm v. Bd. of Educ. of Honeoye FallsLima Cent. School Dist., 506 F. App’x 65, 70 (2d Cir. 2012) (summary order) (finding that district
court did not abuse its discretion in enjoining plaintiff from filing further federal complaints where
plaintiff was given notice of the possible injunction through defendants’ motion to dismiss). As
Plaintiff’s litigation history demonstrates, she certainly has not been “deprived” of her right to
access courts. “[F]ederal courts have limited resources. Frequent frivolous filings work to
diminish the ability of the courts to manage their dockets for the efficient administration of justice.”
Mallgren v. Bloomberg, No. 13–cv–1466, 2013 WL 1873334, at *3 (E.D.N.Y. May 2, 2013). The
Court need not prolong its consideration of whether a filing injunction is appropriate.
It is hereby ordered that the Clerk of Court refuse to accept any submission signed by
Plaintiff Claudette Boothe, Andre Audige (Plaintiff’s husband), or Jody Ashton (Plaintiff’s
daughter), if the submission relates, in any way, to the property located on 3221 Church Avenue,
Brooklyn, NY 11226, unless Plaintiff, Audige, or Ashton (1) obtain leave of the Court to file such
papers, and (2) provide proof of leave from Judge Partnow of the New York Supreme Court to file
the action. See New York v. Best, No. 14–cv–3634, 2014 WL 5305991, at *3 (E.D.N.Y. Oct. 15,
2014) (“Federal courts have both the inherent power and the constitutional obligation to protect
their jurisdiction from conduct which impairs their ability to carry out Article III functions.”
quoting In re Martin–Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984)); see also Lipko v. Christie, 94
F. Appx. 12, at 14 (2d Cir. 2004) (summary order) (imposing a leave-to-file requirement in the
Court of Appeals for the Second Circuit “because existing injunctions and sanctions in state court
have not deterred [plaintiff] from initiating frivolous complaints”). This filing injunction shall
also apply to any filing Plaintiff, Audige, or Ashton seeks to make, relating to the property located
on 3221 Church Avenue, Brooklyn, NY 11226, in the United States Bankruptcy Court in the
Eastern District of New York. Plaintiff is warned that filing of additional frivolous motions and
actions in violation of the Court’s order may result in the imposition of monetary sanctions. See,
e.g., Manti’s Transp. v. Kenner, No. 13–cv–6546, 2015 WL 1915004, at *1 (E.D.N.Y. Apr. 27,
2015) (imposing a filing injunction and fifteen thousand dollar ($15,000) sanction on plaintiff);
Armatas v. Maroulleti, No. 08–cv–0310, 2016 WL 3460367, at *6 (E.D.N.Y. Jun. 21, 2016)
(warning plaintiff that “any attempt to re-litigate his claims . . . will be met with the imposition of
further monetary sanctions”).
VIII. The Court Denies Plaintiff’s Request to Appoint Counsel
Plaintiff notes in her opposition paper that this Court “has the power and authority to
appoint legal representation, or perhaps legal counsel which Plaintiff may ask legal questions, to
which Plaintiff would greatly welcome and would have no objection.” (Dkt. 32 at ¶ 5.) To the
extent Plaintiff is asking the Court to appoint her counsel in this matter, the Court declines to do
There is no right to counsel in a civil case, and “[t]he determination of whether appointment
of counsel is necessary rests with the discretion of the court.” In re Martin-Trigona, 737 F.2d at
1260. One of the factors that the Court considers is the merits of Plaintiff’s claims. Cooper v. A.
Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (“The factor which command[s] the most attention
. . . [is] the merits.”); Phelan v. Sullivan, 541 F. App’x 21, 25 (2d Cir. 2013) (summary order)
(affirming district court’s denial of motion for appointment of counsel where the plaintiff “had not
demonstrated that his claims were likely to succeed on the merits”). In light of Plaintiff’s history
of litigation and the absence of any meritorious claims, Plaintiff’s request for pro bono counsel is
For the reasons stated above, the Amended Complaint is dismissed for lack of subject
matter jurisdiction. Fed. R. Civ. 12(h)(3). Furthermore, the Court orders that Plaintiff, Andre
Audige, and Jody Ashton are enjoined from filing any motions, petitions, or actions in the District
Court and Bankruptcy Court for the Eastern District of New York, relating to the property located
at 3221 Church Avenue, Brooklyn, New York 11226, without first obtaining leave of this Court
and leave of the Honorable Mark I. Partnow of the New York Supreme Court. The Clerk of Court
is directed to return to Plaintiff, without filing, any submission that is received without an
application seeking to file. 28 U.S.C. § 1651. Nothing herein shall be construed to prohibit
Plaintiff from filing an appeal of this Order. However, the Court certifies pursuant to 28 U.S.C. §
1915(a)(3) that any appeal 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).
The Clerk of Court is respectfully directed to enter judgment and close this case.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: May 23, 2017
Brooklyn, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?