Grant v. MERSCORP Holdings, Inc. et al

Filing 4

ORDER: For the reasons stated in the attached, Plaintiff's Complaint is dismissed. In light of Plaintiffs pro se status, however, Plaintiff is granted thirty (30) days to amend his Complaint. If Plaintiff fails to comply with this Order within the time allowed, the Complaint shall be dismissed and judgment shall enter. 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).. Ordered by Judge Pamela K. Chen on 11/13/2017. (Hess, Alexandra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANDREW GRANT,
Plaintiff,

MEMORANDUM & ORDER
17-CV-6063(PKC)

-againstMERSCORP HOLDINGS, INC., BILL
BECKMANN, and BRENDON WEISS,
Defendants.
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PAMELA K. CHEN, United States District Judge:
On October 19, 2017, pro se Plaintiff Andrew Grant, filed the instant action against
Defendants MERSCORP Holdings Inc. (“MERSCORP”), Bill Beckmann, the Chief Executive
Officer of MERSCORP, and Brendon Weiss, the Senior Vice President of MERSCORP. Plaintiff
is “seeking a remedy in Admiralty” and alleges jurisdiction pursuant to 42 U.S.C. § 1983, the
Freedom of Information Act (the “FOIA”), 5 U.S.C. § 552 et seq., as well as numerous provisions
of Title 18 of the United States Code. (Complaint, Dkt. 1, at 1-5.) Plaintiff has paid the filing fee
to commence this action. For the reasons discussed below, Plaintiff’s Complaint is dismissed sua
sponte; however, Plaintiff is granted thirty (30) days from the date of this Order to file an amended
complaint.
BACKGROUND
As best as can be determined, Plaintiff appears to allege that Defendant MERSCORP
improperly assigned the mortgage on his property. He seeks five million dollars in damages and
requests that his mortgage be “cleared.” (Id. at 6).

DISCUSSION
A. Standard of Review
Although the Court is mindful that “[a] document filed pro se is to be liberally construed,
and 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) (internal
quotation marks and citations omitted), a complaint must still contain “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face,” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “[A] plaintiff's obligation to provide the ‘grounds’ of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. . . . Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations
and citations omitted). The district court has “inherent authority to dismiss frivolous actions” sua
sponte. Abrams v. Sprizzo, 201 F.3d 430, 430 (2d Cir. 1999); see also Mallard v. U.S. Dist. Court
for S. Dist. of Iowa, 490 U.S. 296, 307–08 (1989) (noting that even though a statute “authorizes
courts to dismiss a ‘frivolous or malicious’ action, . . . there is little doubt [courts] would have
power to do so even in the absence of [a statute]”); Leonhard v. U.S., 633 F.2d 599, 609 n.11 (2d
Cir. 1980) (noting that the district court had the power to dismiss a complaint sua sponte for failure
to state a claim).
Because Plaintiff does not make a cognizable claim, the Court finds that this lawsuit is
frivolous and must be dismissed. See Abrams, 201 F.3d at 430 (“An action is frivolous as a matter
of law when . . . ‘the claim is based on an indisputably meritless legal theory or when a dispositive
defense clearly exists on the face of the complaint.’”) (quoting Livingston v. Adirondack Beverage
Co., 141 F.3d 434, 437 (2d Cir. 1998)); Baker v. Dir. U.S. Parole Comm’r., 916 F.2d 725 (D.C.

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Cir. 1990) (holding sua sponte dismissal appropriate where “it is patently obvious that [plaintiff]
could not prevail”). The Court, however, grants Plaintiff leave to amend.
B. Plaintiff’s Claims Are Not Cognizable under 42 U.S.C. § 1983
To the extent Plaintiff seeks to maintain an action under Section 1983, he must allege two
essential elements. First, “the conduct complained of must have been committed by a person
acting under color of state law.” Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994) (citation
omitted). Second, “the conduct complained of must have deprived a person of rights, privileges,
or immunities secured by the Constitution or laws of the United States.” Id.; see also McGugan
v. Aldana-Bernier, 752 F.3d 224, 229 (2d Cir. 2014) (“To state a claim under § 1983, a plaintiff
must allege that defendants violated plaintiff’s federal rights while acting under color of state
law.”). Private conduct, no matter how discriminatory or wrongful, is generally beyond the reach
of Section 1983. Am. Manufacturers Mutual Ins.e Co. v. Sullivan, 526 U.S. 40, 50 (1999)
(quotations omitted); cf. Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531
U.S. 288, 295 (2001) (“[S]tate action may be found if, though only if, there is such a ‘close nexus
between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated
as that of the State itself.’” (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351
(1974)).
Here, Defendant MERSCORP is a private corporation and Defendants Bill Beckmann and
Brendon Weiss are private parties whose conduct is not alleged to be attributable to the State.
Therefore, Plaintiff may not maintain a Section 1983 action against these defendants.
C. Plaintiff’s Claims Are Not Cognizable under Title 18 of the United States Code
In his Complaint, Plaintiff lists numerous provisions of Title 18 of the United States Code,
which sets forth federal criminal statutes. Liberally construed, Plaintiff appears to allege that

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Defendants have violated these criminal provisions. (Dkt. 1, at 2-4.) Federal criminal statutes,
such as those invoked by Plaintiff, do not provide private rights of action. Hill v. Didio, 191 F.
App’x 13, 14–15 (2d Cir. 2006); (see also Dkt. 1, at 2-4). A private party does not have standing
to file or prosecute a criminal case because “a private citizen lacks a judicially cognizable interest
in the prosecution or nonprosecution of another.” Leeke v. Timmerman, 454 U.S. 83, 86 (1981)
(citation and internal quotation marks omitted). Therefore, to the extent that Plaintiff seeks to
pursue criminal charges against Defendants, he lacks standing.
D. Plaintiff’s Claims Are Not Cognizable under 5 U.S.C. § 552
Section 552 of Title 5 of the United States Code sets forth the provisions of the Freedom
of Information Act (“FOIA”). The FOIA’s purpose is to ensure public access to information by
creating a judicially enforceable public right to obtain information from federal government
agencies. See Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011). Here, Defendants are a private
corporation and private individuals; thus, they are not subject to the FOIA. See Main St. Leg.
Services, Inc. v. Natl. Sec. Council, 811 F.3d 542, 546 (2d Cir. 2016) (noting that FOIA applies
only to federal agencies).
CONCLUSION
Accordingly, because the Complaint fails to state a claim for which Plaintiff may obtain
relief, it is dismissed in its entirety. 28 U.S.C. § 1915(e)(2)(B); id. § 1915A(b). In light of
Plaintiff’s pro se status, however, Plaintiff is granted thirty (30) days to amend his Complaint.
Should Plaintiff decide to file an amended complaint, it must be submitted within thirty
days of this Order, be captioned “Amended Complaint”, and bear the same docket number as this
Order. Plaintiff’s amended complaint must clearly state the basis for the Court’s exercise of
jurisdiction. To the extent that Plaintiff seeks to assert that his mortgage was improperly assigned,

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he must allege facts in support of his claim. For example, he should state where the property is
located, the date that he received an initial mortgage, the date of any subsequent mortgage, the
date that the mortgage(s) was assigned, and whether the mortgage is currently in default.
If Plaintiff fails to comply with this Order within the time allowed, the Complaint shall be
dismissed and judgment shall enter. 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 purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
/s/Pamela K. Chen_____________________
Pamela K. Chen
United States District Judge

Dated: November 13, 2017
Brooklyn, New York

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