Force et al v. Crowell et al

Filing 45

ORDER granting 32 Motion to Dismiss for Failure to State a Claim; granting 32 Motion to Dismiss for Lack of Jurisdiction; granting 32 Motion to Dismiss Case as Frivolous; denying 39 Motion for Sanctions -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Plaintiffs' claims are dismissed in their entirety as to all Defendants, including as to Non-appearing Defendant Parakevopoulos, with prejudice, for lack of subject matter jurisdiction, and County Defen dants' Motion for Sanctions is denied. As no claims remain, County Defendants' motion to strike the amended complaint for violation of Federal Rule of Civil Procedure 8 is denied as moot. Plaintiffs are directed to serve a copy of this Electronic Order and the Attached Written Memorandum and Order to Non-appearing Defendant Parakevopoulos. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 09/30/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT FORCE and DONNA FORCE,
:
:
MEMORANDUM AND ORDER
Plaintiffs,
:
16-CV-06062 (DLI)(RLM)
:
-against:
:
THE OTSEGO COUNTY TREASURER, DAN
:
CROWELL (Defendant Official in his Personal and :
Official Capacities), THE OTSEGO COUNTY
:
TRESURER’S OFFICE, THE OSTEGO COUNTY :
BOARD OF REPRESENTATIVES, BOARD
:
CHAIR KATHLEEN CLARK (Defendant Official :
in her Personal and Official Capacities), and
:
CHRISTOS PARAKEVOPOULOS,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On November 1, 2016, Plaintiffs Robert and Donna Force (“Plaintiffs”) initiated the
present action against the Otsego County Treasurer, Dan Crowell; the Ostego County Treasurer’s
Office; the Otsego County Board of Representatives; and the Otsego County Board of
Representatives Chair, Kathleen Clark (collectively, the “County Defendants”); and Christos
Parakevopoulos (collectively, “Defendants”) by filing a complaint (“Compl.”) that asserted
various claims relating to a default judgment entered against them in a tax foreclosure case
involving real property. Dkt. Entry No. 1.
On December 20, 2016, the County Defendants filed a motion to dismiss the complaint for
failure to state a claim and a motion to strike the complaint for violation of Federal Rule of Civil
Procedure 8. See County Defendants’ Mem. of Law Supporting Mot. To Dism., Dkt. Entry 16.
On January 11, 2017, Plaintiffs moved for leave to file an amended complaint, which the Court
granted. See Dkt. Entry No. 19. On January 18, 2017, Defendants’ motion to dismiss the

complaint was terminated as moot. On January 23, 2017, Plaintiffs filed their amended complaint.
See Dkt. Entry No. 24. On January 24, 2017, the County Defendants moved to strike the amended
complaint for failure to comply with the directions of the Honorable Roanne L. Mann, Chief
United States Magistrate Judge. See Dkt. Entry No. 25. The Court agreed and struck the amended
complaint. Plaintiffs filed a corrected amended complaint later that day (“Amended Compl.”).
See Dkt. Entry No. 28.
Plaintiffs seek damages for:

(1) violations 42 U.S.C. § 1983 against the County

Defendants; (2) violations 42 U.S.C. § 1985 against the County Defendants; (3) violations of the
Fourth, Fifth, and Fourteenth Amendments against the County Defendants; and (4) wrongful
eviction against Defendant Parakevopoulos. Amended Compl. at 33-35.
On January 26, 2017, the County Defendants moved to dismiss and strike the amended
complaint. See County Defendants’ Mem. of Law Supporting Mot. to Dism. Amended Compl.
(“County Defendants’ Mot. to Dism.”), Dkt. Entry 32. In its motion, the County Defendants assert,
inter alia, that this action is barred by res judicata, collateral estoppel, the statute of limitations,
and the Rooker Feldman doctrine; that the due process claims are meritless because of the
availability of state law remedies; and that the action should be dismissed on the basis of improper
venue. See Id. Defendant Parakevopoulos has not joined the County Defendants’ Motion to
Dismiss, nor has he filed an answer or otherwise responded to the amended complaint.
Nevertheless, the County Defendants’ Motion to Dismiss advocates for dismissal of the wrongful
eviction claim against Parakevopoulos. Id. at 22-24.
On February 15, 2017, Plaintiffs opposed the County Defendants’ Motion to Dismiss,
denying that they attempted to relitigate a previous action, and otherwise reasserting allegations
from the complaint. See Plaintiffs’ Mem. of Law in Opposition to Defs. Mot. to Dism. Amended

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Compl. (“Pls.’ Opp.”), Dkt. Entry No. 36. On February 20, 2017, the County Defendants filed
their reply. See County Defs. Reply Mem. of Law Supporting Mot. to Dism. Amended Compl.
(“County Defs. Reply”), Dkt. Entry No. 37.
On February 27, 2017, the County Defendants moved for sanctions against Plaintiffs and
their counsel under Federal Rule of Civil Procedure 11 for bringing allegedly frivolous claims
contained in the amended complaint. See Motion for Sanctions, Dkt. Entry 39.
For the reasons set forth below, all claims against all Defendants are dismissed, with
prejudice, for lack of subject matter jurisdiction. The County Defendant’s Motion for Sanctions
is denied.

BACKGROUND
The facts outlined herein, taken from the amended complaint, which incorporates the
original complaint by reference, are assumed true for the purposes of this motion. The Court takes
judicial notice of court documents relating to the prior foreclosure action in New York State
County Court, Otsego County, titled, In the Matter of the Foreclosure of Tax Liens by Proceeding
in Rem pursuant to Article Eleven of the Real Property Tax law by Otsego County, Index No.
2011-1115 (the “Foreclosure Action”); the entry of default judgment in the Foreclosure Action in
New York State Supreme Court, Otsego County, Index No. 15-0723 (“the Default Judgment”);
the appeal of the Foreclosure Action in the New York State Appellate Division, Third Judicial
Department, affirming the Default Judgment, dated May 7, 2015 (“the Appeal”); and Plaintiffs’
Article 78 Petition, denied by Hon. Brian Burns, J.S.C., 6th Judicial District, New York State
Supreme Court, Otsego County (“Article 78 Proceeding”). See Konrad v. Epley, No. 12-CV-4021
(JFB) (ETB), 2013 WL 6200009, at *8 n.5 (E.D.N.Y. Nov. 25, 2013) (“Court records and other
public records are facts of which a court may properly take judicial notice pursuant to Rule 201.”)

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aff’d 586 F. App’x 72 (2d Cir. 2014).
Plaintiff Robert Force is a member of the U.S. Air National Guard and served in the United
States Navy from 1976-1982. Compl. at ¶ 46. Plaintiff Donna Force has multiple sclerosis and
suffers from physical and mental disabilities. Id. at ¶ 48. Plaintiffs owned three parcels of land,
mortgage-free, totaling 111 acres and valued at $258,900.00, in the Town of Butternuts, Otsego
County (the “Property”). Id. at ¶¶ 34, 36. Plaintiffs kept the Property as a vacation/retirement
home, while residing in Suffolk County. Id. at ¶¶ 32-33.
On January 23, 2013, the Otsego County Treasurer included the Property on a list of tax
delinquent properties for failure to pay two years of back taxes. Id. at ¶ 38. Plaintiffs acknowledge
owing two inconsecutive years of back taxes in 2013. Id. Plaintiffs claim that they were served
with tax bills and notices for only two out of the three parcels owned, and that the notices pertaining
to the third parcel were sent to a neighbor’s address due to a scrivener’s error. Id. at ¶ 43.
On January 23, 2013, the Otsego County Treasurer filed a Petition and Notice of
Foreclosure in the New York State Supreme Court, Otsego County. Plaintiffs, then proceeding
pro se, failed to answer or to appear. Id. at ¶ 60. On May 28, 2013, County Defendants filed a
motion for default judgment against Plaintiffs, and, on June 14, 2013, the court entered the default
judgment. Id. at ¶ 52. County Defendants did not file a military status affidavit for Mr. Force and
the Court did not appoint counsel for Mr. Force prior to entering the default judgment. Id. at ¶ 54.
Plaintiffs then missed the June 30, 2014 deadline to pay back taxes. Id. at ¶ 50.
Plaintiffs retained counsel (now deceased) on July 16, 2014. Id. at ¶ 61. On August 6,
2014, Plaintiffs filed an appeal and request for an emergency stay to stay the August 20, 2014 tax
sale and for vacatur of the default judgment. Id. at ¶ 83. On August 18, 2014, Plaintiffs and their
attorney appeared before Hon. Brian Burns, J.S.C., 6th Judicial District, the Justice who had entered

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the default judgment. Id. at ¶ 64. Justice Burns ordered Plaintiffs to place the back taxes
($21,600.00) in escrow, denied vacatur of the default judgment, and denied the motion to stay. Id.
at ¶¶ 64, 85; In re Foreclosure of Tax Liens by Cty. of Otsego, 128 A.D.3d 1165, 1166 (3d Dept.
2015).
On August 19, 2014, Plaintiffs’ attorney complied with the court’s order to place the back
taxes owed in an escrow account. Compl. at ¶ 65. Plaintiffs claim they believed that posting the
back taxes in escrow created a stay on the sale of the Property, despite the court’s ruling to the
contrary.

Id. at ¶ 66.

On August 20, 2014, the Property was sold at public auction to

Parakevopoulos. Id. at ¶ 80.
On August 19, 2014, Plaintiffs appealed the default judgment to the New York State
Supreme Court, Appellate Division, Third Department (“Appellate Division”). Id. at ¶¶ 57, 87.
Oral argument was held March 23, 2015. Id. at ¶ 102. On May 7, 2015, the Appellate Division
issued a written opinion, affirming the default judgment and finding that Plaintiffs properly were
notified of the Foreclosure Action and that the appeal was untimely. Id. at 57; In re Foreclosure
of Tax Liens by Cty. of Otsego, 128 A.D.3d at 1166.
Plaintiffs’ attorney passed away on April 5, 2015, and Plaintiffs retained current counsel
on August 15, 2015. Compl. at ¶¶ 104, 106. On September 9, 2015, Plaintiffs filed an Article 78
Petition in the New York State Supreme Court, Otsego County, which was denied with prejudice
on statute of limitations grounds on January 26, 2016. Id. at ¶¶ 107-08.

DISCUSSION
I. LEGAL STANDARD
Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to give
the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura Pharms.,
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Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)),
overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.
(quoting Twombly, 550 U.S. at 555).
Under Rule 12(b)(6), 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.” To resolve such a motion,
courts “must accept as true all [factual] allegations contained in a complaint,” but need not accept
“legal conclusions.” Iqbal, 556 U.S. at 678. 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. “[A] complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
“Federal courts are courts of limited jurisdiction whose power is limited strictly by Article
III of the Constitution and congressional statute.” United Food & Commercial Workers Union,
Local 919 AFL-CIO v. CenterMark Props. Merdien Square, Inc., 30 F.3d 298, 303 (2d Cir. 1994)
(internal citation omitted). For that reason, parties “cannot waive subject matter jurisdiction by
express consent, conduct, or estoppel because they fail to challenge jurisdiction early in the
proceedings.” Id. (internal citations and quotation marks omitted). When the Court lacks subject
matter jurisdiction, it must dismiss the action. FED. R. CIV. P. 12(h)(3); Arbaugh v. Y & H Corp.,
546 U.S. 500, 514 (2006).

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II. THE COURT LACKS JURISDICTION OVER THE CLAIMS AGAINST THE
COUNTY DEFENDANTS UNDER THE ROOKER FELDMAN DOCTRINE
The Court lacks subject matter jurisdiction in this case over the County Defendants based
on the Rooker Feldman Doctrine. See Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462
(1983); Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923). “Underlying the Rooker-Feldman [D]octrine
is the principle, expressed by Congress in 28 U.S.C. § 1257, that within the federal judicial system,
only the Supreme Court may review state-court decisions.” Green v. Mattingly, 585 F.3d 97, 101
(2d Cir. 2009) (internal citations and quotation marks omitted). This doctrine ensures that federal
courts “give a state-court judgment the same preclusive effect as would be given that judgment
under the law of the [s]tate in which the judgment was rendered.” O’Connor v. Pierson, 568 F.3d
64, 69 (2d Cir. 2009) (internal citations and quotation marks omitted). In order for the Rooker
Feldman Doctrine to apply, four requirements must be 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 review and rejection of that judgment; and (4) the state judgment was rendered
before the district court proceedings commenced.” Vossbrinck v. Accredited Home Lenders, Inc.,
773 F.3d 423, 426 (2d Cir. 2014) (internal citations and quotation marks omitted). Notably,
“courts within this Circuit routinely hold that a federal court action seeking to overturn a state
court judgment of foreclosure or eviction is barred by the Rooker-Feldman doctrine.” Rossman v.
Stelzel, No. 11-CV-4293 (JS) (ETB), 2011 WL 4916898, at *4 (E.D.N.Y. Oct. 13, 2011)
(collecting cases).
The procedural elements of the Rooker Feldman Doctrine, that is, the first and fourth
prongs, clearly are met as to the County Defendants. Plaintiffs lost in state court four times: (1)
the state trial court entered default judgment against Plaintiffs; (2) the state trial court denied

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vacatur of the default judgment and refused to stay the foreclosure auction; (3) the state trial court
dismissed Plaintiffs’ Article 78 Petition; and (4) the Appellate Division, Third Department
affirmed entry of the default judgment. All of these decisions were rendered prior to the
commencement of the instant matter.
The substantive elements of the Rooker Feldman Doctrine, the second and third prongs,
also are met easily. The amended complaint makes clear that the present action is nothing more
than an attempt to stymie the impact of the state courts’ decisions and to invite review and rejection
of the state courts’ reasoning and decisions.
All of the injuries that Plaintiffs allege stem from the state courts’ decisions entering and
upholding the default judgment in the Foreclosure Action that led to the sale of Plaintiffs’ Property.
Plaintiffs allege “damages arising out of conspiracy via (political affiliation/favoritism) to violate
the Plaintiffs’ Constitutional rights which resulted in damages arising out of this wrongful tax
foreclosure.” Amended Compl. at ¶ 40 (emphasis added). The amended complaint is replete with
Plaintiffs’ frustrations over the state judges’ alleged dismissiveness of Plaintiffs’ arguments. For
example, Plaintiffs repeatedly allege that they were improperly served, despite the Appellate
Division’s finding that “the record before us demonstrates that [Plaintiffs] were properly served
with notice of the commencement of this proceeding in January 2013 by both certified mail and
ordinary first class mail as required by statute.” Compl. at ¶¶ 42-45; In re Foreclosure of Tax
Liens by Cty. of Otsego, 128 A.D.3d at 1166.
Plaintiffs also attack the reasoning in the state court decisions, alleging that “the Court
failed to appoint counsel for the plaintiff in violation of 50 U.S.C. § 520 & 521” and accusing the
trial court of erring in its rulings on statute of limitations and res judicata in the Article 78
Proceeding. Compl. at ¶¶ 55, 108. Plaintiffs further accuse the trial court of “ignor[ing] Plaintiffs’

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plea”; that “multiple particularized conflicts of interest exist in this case” between the trial court
and the Otsego County Attorney; and complain that “justice could not and cannot be obtained
whatsoever in the 6th Judicial District Court.” Amended Compl. at ¶¶ 97, 111-12. Furthermore,
Plaintiffs directly quote the oral arguments of the motion to vacate the default judgment and the
appeal to highlight the weaknesses in County Defendants’ arguments in state court. Compl. at ¶¶
63, 102.
Ultimately, Plaintiffs essentially ask this Court to “grant judicial review” over the state
court decisions. Amended Compl. at ¶ 110. See Webster v. Penzetta, 458 F. App’x 23, 25 (2d Cir.
2012) (finding that the complaint “effectively sought federal court review of a previous state court
judgment of foreclosure” and barring the claim under the Rooker Feldman Doctrine); Swiatkowski
v. New York, 160 F. App’x 30, 31 (2d Cir. 2005) (explaining that the complaint “essentially
amounts to an objection to the disposition of the foreclosure action” in the state trial court and
dismissing the case under the Rooker Feldman Doctrine). This Court cannot endorse Plaintiffs’
arguments without impermissibly rejecting state court decisions. Plaintiffs effectively seek an
appeal of the state courts’ decisions as to their claims against the County Defendants. As such,
the Court lacks subject matter jurisdiction over those claims and the claims against the County
Defendants are dismissed.
III. THE CLAIMS AGAINST DEFENDANT PARAKEVOPOULOS ARE DISMISSED
FOR FAILURE TO STATE A CLAIM
Plaintiffs label their Sixth Cause of Action, “Wrongful Eviction,” but assert that
Parakevopoulos violated their Constitutional rights to Due Process. Because this assertion is not
supported by any factual allegations, the Court understands the Sixth Cause of Action to be a
wrongful eviction claim, consistent with the title. See Haynie v. N.Y. Hous. Auth., No. 14-CV-

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5633 (CBA) (VVP), 2015 WL 502229, at *2 (E.D.N.Y. Feb. 5, 2015) (finding that plaintiff’s
unsupported conclusory allegations that defendant violated his due process rights were “simply an
attempt to present a wrongful eviction claim.”). It is well settled that federal courts do not have
subject matter jurisdiction over eviction claims. Id. (collecting cases). Accordingly, this Court
lacks subject matter jurisdiction over Plaintiffs’ claim against Parakevopoulos, which is dismissed
sua sponte. 1
IV. THE COUNTY DEFENDANTS’ MOTION FOR SANCTIONS IS DENIED
The County Defendants seek “sanctions against Plaintiffs and/or their counsel for filing
frivolous claims in the Amended Complaint” under Federal Rule of Civil Procedure 11(b)(2).
Notice of Motion for Sanctions at 1. An attorney may be subject to sanctions under Rule 11 for
presenting frivolous claims in a pleading. Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy &
Sauce Factory, Ltd., 682 F.3d 170, 177 (2d Cir. 2012). The standard for imposing sanctions is
objective unreasonableness and is not based on the subjective beliefs of the person making the
statement. Id. The operative question is whether the argument is frivolous, i.e., the legal position
has no chance of success, and there is no reasonable argument to extend, modify or reverse the law
as it stands. Id. A district court has jurisdiction to impose sanctions irrespective of the status of
the underlying case because the imposition of sanctions is an issue collateral to and independent
from the underlying case. Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 333 (2d Cir.
1999). Thus, even when, as here, a district court lacks subject matter jurisdiction over an
underlying action, it still possesses jurisdiction to impose sanctions arising from the underlying
case. Id.

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Parakevopoulos has not entered an appearance in this action, nor moved to dismiss this claim. While Parakevopoulos
is not represented by County Defendants’ attorney, County Defendants argue that the claim against Parakevopoulos
is “patently meritless.” Mot. to Dism. at 22.

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County Defendants argue that, because “Plaintiffs and their counsel had all the necessary
information to recognize . . . when the Amended Complaint was filed” that “Plaintiffs are barred
by principles of res judicata and collateral estoppel from pursuing their claims,” the amended
complaint violates Rule 11. Motion for Sanctions at 5. County Defendants later state that the
Rooker Feldman Doctrine “may be largely moot and/or inapposite.” Id. at 7 n.2. Considering that
the Court dismisses this action on Rooker Feldman grounds and not on res judicata and collateral
estoppel grounds, the Court will not issue sanctions against Plaintiffs and/or their counsel for
failure to “recognize” that their claims are barred by res judicata and collateral estoppel. See
MacPherson v. Town of Southampton, 664 F. Supp.2d 203, 213 (E.D.N.Y. 2009) (denying motion
for sanctions, stating “[t]he issues raised by Plaintiffs’ claims are not as simple as the [moving
party] would have this Court believe, as evidenced by the failure of the [moving party] to
adequately address these claims in their brief.”).
Furthermore, the County Defendant’s Motion for Sanctions reads less like a motion for
sanctions and more like an attempt to supplement their motion to dismiss. All but a few paragraphs
of the nineteen-page memorandum of law addresses arguments as to why Plaintiffs’ claims should
be dismissed, some of which the County Defendants failed to raise in their motion to dismiss. A
motion for sanctions is not an end-run against deadlines or page limits on briefs.

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CONCLUSION
For the foregoing reasons, Plaintiffs’ claims are dismissed in their entirety as to all
Defendants, with prejudice, for lack of subject matter jurisdiction and County Defendants’ Motion
for Sanctions is denied. As no claims remain, County Defendants’ motion to strike the amended
complaint for violation of Federal Rule of Civil Procedure 8 is denied as moot.

SO ORDERED.
Dated: Brooklyn, New York
September 30, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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