Roy et al v. Bank of New York Mellon et al

Filing 104

ORDER ADOPTING REPORT AND RECOMMENDATIONS. The Court finds that the Colorado River abstention doctrine bars Plaintiffs' claims and dismisses the Amended Complaint. The Court also adopts Judge Blooms recommendations and dismisses Plaintiffs' request for injunctive relief as also barred by the Anti-Injunction Act, and denies their motion for sanctions. The Clerk of Court is direct to close this case. Ordered by Judge Margo K. Brodie on 9/30/2018. (Belsher, Amy)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------EMMANUEL ROY, and RENEE HASLER,
Plaintiffs,
v.

MEMORANDUM & ORDER
17-CV-6729 (MKB) (LB)

BANK OF NEW YORK MELLON, BRIAN T.
MOYNIHAN, individually and as CEO of Bank of
America, GERARD L. HASSELL, individually and
as CEO of Bank of New York Mellon, BILL
BECKMAN, individually and as CEO of
MERSCORP Holding, Inc., BANK OF AMERICA
CORPORATION, as Successor in Interest to
Countrywide Financial Corp and Countrywide
Home Loans, FAIRMONT FUNDING LTD.,
CWALT ALTERNATIVE TRUST 2007-14-2T,
MORTGAGE ELECTRONIC REGISTRATION
SYSTEM, also known as MERS, ROSICKI
ROSICKI AND ASSOCIATES, COUNTRY WIDE
HOME LOANS, MARY KIST, individually and as
VP of MERS, JASON SACKOOR, JORGE
VARGAS, MICHELE SJORLANDER, CHRIS
LAROCCO, LALLIQUE HOWE BJURSTROM,
DEE ANN WESTFALL CORTES, CHESTER
LEVINGS, ANDREW MORGANSTERN,
SUZANNE BERGER, COURTNEY WILLIAMS,
Defendants.
--------------------------------------------------------------MARGO K. BRODIE, United States District Judge:
Plaintiffs Emmanuel Roy and Renee Hasler, proceeding pro se, 1 commenced the abovecaptioned action on May 31, 2017, in the United States District Court for the Eastern District of
Washington asserting claims pursuant to the Truth in Lending Act, 15 U.S.C. §§ 1601-1667e

1

Although the Plaintiffs appear in this action pro se, the Court notes that Roy was an
attorney prior to his conviction for participating in a number of mortgage fraud schemes. See
United States v. Roy, 783 F.3d 418 (2d Cir. 2015).

(“TILA”), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.
(“RICO”), as well as wire fraud, money laundering, conspiracy, and Fourteenth Amendment Due
Process claims. (Compl., Docket Entry No. 1; Am. Compl. ¶¶ 81–149, Docket Entry No. 2.)
Plaintiffs filed an Amended Complaint on August 14, 2017. 2 (Am. Compl.) Plaintiffs bring this
action against banks, executives, attorneys, and notaries allegedly involved in the foreclosure of
a property located at 163 Taaffe Place, Brooklyn, New York (the “Property”). (See generally
Am. Compl.) The following Defendants moved to dismiss the Amended Complaint pursuant to
Rules 12(b)(6) and 12(b)(1) of the Federal Rules of Civil Procedure: Countrywide Home Loans,
Bank of America Corporation, as successor in interest to Countrywide Financial Corp., Brian T.
Moynihan, Suzanne M. Berger, Chris LaRocco, Michelle Sjorlander, and Lallique Howe
Bjurstrom, (Countrywide Defs. Mot. to Dismiss (“First Mot.”), Docket Entry No. 61); Dee Ann
Westfall Cortes, (Cortes Mot. to Dismiss, Docket Entry No. 63); Bank of New York Mellon
(“BNYM”), as Trustee for CWALT Alternative Loan Trust 2007-14T2, CWALT Alternative
Loan Trust 2007-14T2 (“Trust”), and Gerard L. Hassell, (BNYM Mot. to Dismiss, Docket Entry
No. 62); Rosicki, Rosicki & Associates, Jason Sackoor, and Andrew Morganstem, (Rosicki Mot.
to Dismiss, Docket Entry No. 54–58); and Jorge Vargas, (Vargas Mot. to Dismiss, Docket Entry
No. 11), (collectively “Mots. to Dismiss”). Plaintiffs separately moved for sanctions pursuant to
Rule 11 of the Federal Rules of Civil Procedure. (Pls. Mot. for Sanctions, Docket Entry No. 88.)
On April 10, 2018, the Court referred all of the motions to Magistrate Judge Lois Bloom for a
report and recommendation. (Order dated Apr. 10, 2018.)
By report and recommendation dated August 14, 2018, Judge Bloom recommended that

2

On November 17, 2017, the Eastern District of Washington transferred the case to the
Eastern District of New York. (Order dated Nov. 15, 2017.)
2

the Court grant the motions to dismiss and deny Plaintiffs’ motion for sanctions (the “R&R”).
(See R&R.) Plaintiffs filed objections to the R&R on September 6, 2018. (Pls. Obj., Docket
Entry No. 101.) For the reasons set forth below, the Court adopts the R&R in part and grants
Defendants’ motions to dismiss.
I.

Background
a.

Factual background

The Court assumes the truth of the factual allegations in the Amended Complaint for the
purposes of this Memorandum and Order.
Roy purchased the Property in March of 2007 through a “straw-buyer,” a former business
partner named Jean Robert Geffrard who is not a party to the instant action. (Am. Compl. ¶ 41.)
Roy and Geffrard made the purchase arrangement with full disclosure to Fairmount Funding
(“Fairmount”), who issued a loan to Geffrard secured by the Property. (Id.) Roy defaulted on
the loan. (Id. ¶ 42.)
On May 14, 2010, BNYM commenced a foreclosure action in New York State Supreme
Court, County of Kings, before Judge I. Mark Partnow (the “Foreclosure Action”). (Id. ¶ 43;
Foreclosure Compl., annexed to Am. Compl. as Ex. B.) 3 The foreclosure complaint alleges that
the mortgagors failed to pay the installment, which became due and payable as of August 1,
2009, and every month thereafter, and that the principal balance due on the note and mortgage as
of the date of the default was $464,590.45. (Foreclosure Compl.) On June 5, 2012, the state
court entered summary judgment in favor of BNYM. (Summary Judgment Order, annexed to

3

The Court takes judicial notice of documents filed in the related state court foreclosure
proceeding. 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.” (internal quotation marks omitted)).
3

Decl. of Jason R. Lipkin (“Lipkin Decl.”) as Ex. E, Docket Entry No. 61-7.) Hasler
subsequently acquired her interest in the Property and attempted to intervene in the Foreclosure
Action. 4 The state court denied this request. (See New York State Unified Court System
(“Foreclosure Action”), WebCivil Supreme, Case No. 012114/2010,
https://iapps.courts.state.ny.us/webcivil, last visited Sept. 27, 2018.) BNYM then moved for a
judgment of foreclosure and sale, which is still pending. (Id.) The foreclosure proceeding is still
pending in state court. (Id.)
Plaintiffs admit that Roy defaulted on the loan but contest Defendants’ right to foreclose
on the Property and the allegedly “illegal tactics used by Defendants to achieve” the foreclosure.
(Am. Compl. ¶ 42.) Plaintiffs allege that “[b]ecause Defendants (CWALT Alternative Loan
Trust and Bank of New York Mellon) never took title to the legal res[,] Defendants are unable to
legally foreclose.” (Id. ¶ 44.) Plaintiffs further allege that “[i]n order to correct the fatal defect
that occurred during the Securitization Process, Defendants decided to use the investment vehicle
as a Criminal Enterprise.” (Id. ¶ 45.) This criminal enterprise involved “recruit[ing] attorneys
willing to commit fraud; hir[ing] robo-signers willing to commit perjury . . . and continuously
fil[ing] these fraudulently procured documents in State court for purpose of achieving one
specific goal - to foreclose on homeowners who defaulted on their loans.” (Id. ¶¶ 45, 61–62.)
Plaintiffs seek recovery of damages, costs, and interest, and to enjoin Defendants from “selling
any property” and “from further prosecution of foreclosure actions based on fraud and material
misrepresentation of facts.” (Id. ¶¶ 147–48.)
b.

Judge Bloom’s recommendations

Judge Bloom recommended that the Court grant Defendants’ motions to dismiss the

4

Plaintiffs do not explain how Hasler acquired her interest in the Property.
4

Amended Complaint on three grounds: (1) all claims as barred under the Colorado River
abstention doctrine, (2) all claims for injunctive relief as barred under the Anti-Injunction Act,
and (3) all claims as time-barred. (R&R 10–11.) In recommending that the claims be dismissed
as time-barred, Judge Bloom found that Plaintiffs’ RICO and fraud claims are time barred
because they accrued in May of 2010 at the commencement of the Foreclosure Action, (id. at
11), and their TILA claims are time barred because the one-year statute of limitations began to
run when the loan originated or the funds transmitted and Plaintiffs’ are not entitled to equitable
tolling, (id. at 12). In addition, Judge Bloom recommended that the Court deny Plaintiffs leave
to amend because “[P]laintiffs have already amended their pleading once and any further
amendment would be futile.” (Id. at 14.) Judge Bloom also recommended that the Court deny
Plaintiffs’ motion for sanctions and attorneys’ fees as unwarranted. (Id.)
II. Discussion
a.

Standards of review
i.

Report and recommendation

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.
2015). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1
(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only

5

conclusory or general objections. Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)
(holding “general objection[s] [to be] insufficient to obtain de novo review by [a] district court”
(citations omitted)); see Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific written
objections to the [magistrate judge’s] proposed findings and recommendations.” (emphasis
added)); see also Colvin v. Berryhill, 734 F. App’x 756, 758, 2018 WL 2277791, at *1 (2d Cir.
May 18, 2018) (“Merely referring the court to previously filed papers or arguments does not
constitute an adequate objection under . . . Fed. R. Civ. P. 72(b).” (quoting Mario v. P & C Food
Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002))).
ii.

Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) when the court “lacks the statutory or constitutional power to adjudicate
it.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À .R.L., 790 F.3d 411, 416–17 (2d Cir.
2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); Shabaj v. Holder,
718 F.3d 48, 50 (2d Cir. 2013) ( quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005)); see also Chau v. S.E.C., 665 F. App’x 67, 70 (2d Cir. 2016).
“[C]ourt[s] must take all facts alleged in the complaint as true and draw all reasonable inferences
in favor of plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made
by drawing from the pleadings inferences favorable to the party asserting it.’” Morrison v. Nat’l
Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citations omitted), aff’d, 561 U.S. 247
(2010). As a result, courts may also “refer[] to evidence outside the pleadings” to evaluate
subject matter jurisdiction. Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 223 (2d Cir.
2017) (quoting Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d
Cir. 2000)). Ultimately, “the party asserting subject matter jurisdiction ‘has the burden of

6

proving by a preponderance of the evidence that it exists.’” Tandon v. Captain’s Cove Marina of
Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (quoting Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000); Suarez v. Mosaic Sales Sols. US Operating Co., LLC, 720 F. App’x 52,
53 (2d Cir. 2018).
b.

Unopposed portions of the R&R

No party objected to the recommendation that the Court dismiss Plaintiffs’ claims for
injunctive relief as precluded under the Anti-Injunctive Act. In addition, no party objected to
Judge Bloom’s recommendation that the Court deny Plaintiffs’ motion for sanctions. Having
reviewed these recommendations for clear error, and finding none, the Court adopts Judge
Bloom’s R&R and dismisses Plaintiffs’ claim for injunctive relief, and denies Plaintiffs’ motion
for sanctions.
c.

Plaintiffs’ objections to the R&R

Plaintiffs object to Judge Bloom’s recommendation that the Court dismiss their claims
pursuant to the Colorado River abstention doctrine, arguing that the present action and the
Foreclosure Action are not “parallel.” 5 (Pls. Obj. 3–5.) In addition, Plaintiffs object to Judge
Bloom’s determination that their RICO and TILA claims are time-barred, arguing that
Defendants have waived this affirmative defense. (Id. at 5–8.) Plaintiffs also argue that Hasler’s
RICO claims are not time-barred because they did not accrue until August of 2016, pursuant to
the “injury discovery rule,” and that Plaintiffs’ TILA claims should be equitably tolled because
Fairmont Funding committed a “self-concealing act.” (Id. at 7–8.)

5

Defendants note that Plaintiffs filed and served their objections to the R&R beyond the
fourteen-day deadline. (Defs. Mem. in Opp’n to Pls. Obj. to R&R, Docket Entry No. 102.)
Nevertheless, in light of Plaintiffs’ pro se status, and absent any prejudice to the Defendants, the
Court will consider Plaintiffs’ objections.
7

i.

Plaintiffs’ claims are barred by the Colorado River abstention doctrine

Plaintiffs argue that the Colorado River abstention doctrine does not bar their claims
because (1) the parties are not identical in this case and the Foreclosure Action; (2) the Court
need not exercise jurisdiction over the Property in order to resolve the dispute; and (3) the
Court’s exercise of jurisdiction would not result in piecemeal litigation. (Pls. Obj. 3–5.)
The Supreme Court has held that a federal court may abstain from exercising jurisdiction
over a case when there is a pending parallel state court proceeding and certain factors weigh in
favor of abstention. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800,
819 (1976). “Lawsuits are considered ‘parallel’ if ‘substantially the same parties are
contemporaneously litigating substantially the same issues’ in different forums.” Great South
Bay Med. Care, P.C. v. Allstate Ins. Co., 204 F. Supp. 2d 492, 496 (E.D.N.Y. 2002) (quoting
Dittmer v. Cty. of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998)). “Perfect symmetry of parties and
issues is not required.” Potente v. Capital One, N.A., No. 16-CV-3570, 2018 WL 1882848, at *4
(E.D.N.Y. Apr. 19, 2018) (citation and internal quotation marks omitted). Rather, parallelism is
achieved where there is a substantial likelihood that the state litigation will dispose of all claims
presented in the federal case.” Mazuma Holding Corp. v. Bethke, 1 F. Supp. 3d 6, 20 (E.D.N.Y.
2014) (internal citations omitted).
If the proceedings are parallel, the court generally considers the following six factors,
with the balance heavily weighted in favor of the exercise of jurisdiction:
(1) whether the controversy involves a res over which one of the
courts has assumed jurisdiction; (2) whether the federal forum is less
convenient than the other for the parties; (3) whether staying or
dismissing the federal action will avoid piecemeal litigation; (4) the
order in which the actions were filed . . . and whether proceedings
have advanced more in one forum than in the other; (5) whether
federal law provides the rule of decision; and (6) whether the state
procedures are adequate to protect the plaintiff’s federal rights.
8

Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist., 673 F.3d 84, 100–
01 (2d Cir. 2012); see also Krondes v. Nationstar Mortg., LLC, No. 17-CV-4974, 2018 WL
2943774, at *3 (S.D.N.Y. June 12, 2018) (quoting Woodford v. Cmty. Action Agency of Greene
Cnty., 239 F.3d 517, 522 (2d Cir. 2001) (internal quotation marks omitted)).
1.

The state court action and the federal action are parallel

The pending Foreclosure Action is a parallel proceeding to this action. First,
substantially the same parties are contemporaneously litigating both cases. Roy and BNYM are
parties in both actions. (See Foreclosure Compl.) While Hasler and fifteen of the Defendants are
not named parties to the Foreclosure Action, “perfect symmetry” is not required and their
interests are congruent with the interests of the Foreclosure Action parties. See Potente, 2018
WL 1882848, at *4 (“Abstention may be appropriate ‘notwithstanding the nonidentity of the
parties’ in cases where interests are ‘congruent.’” (quoting Canaday v. Koch, 608 F. Supp. 1460,
1475 (S.D.N.Y.), aff’d, 768 F.2d 501 (2d Cir. 1985))). To the extent that Hasler has a cognizable
interest in the Property, 6 and therefore standing in either case, her interest in defeating
foreclosure is congruent with Roy’s interests as the defendant in the Foreclosure Action. (See
Pls. Opp’n 6.) In addition, Defendants named in this action were either employed by or worked
with BNYM in connection with the foreclosure. 7 See Krondes, 2018 WL 2943774, at *3

6

Hassler acquired her interest in the Property after the commencement of the
Foreclosure Action and after the state court entered summary judgment; she attempted
unsuccessfully to intervene in the Foreclosure Action. (See Order Denying Mot. to Intervene,
annexed to Declaration of Jason R. Lipkin (“Lipkin Decl.”) as Ex. A, Docket Entry No. 83-2.)
7

These Defendants include CWALT, Alternative Loan Trust 2007-14T2 (appointed
BNYM as trustee in the Foreclosure Action); Hassell, Rosicki, Rosicki & Associates (attorneys
for BNYM in the Foreclosure Action); Bank of America and employees of Bank of America
Moynihan, Sjolander, and Bjurstrom (serviced the mortgage loan on behalf of BNYM); Berger
and LaRocco (attorneys hired by BNYM in relation to the foreclosure); and Fairmont Funding
9

(finding federal action and related state foreclosure action “parallel” where multiple defendants
in federal action were not party to state action); Bromfield v. Lend-Mor Mortg. Bankers Corp.,
No. 15-CV-1103, 2016 WL 632443, at *4 (D. Conn. Feb. 17, 2016) (same); see also Phillips v.
Citibank, N.A., 252 F. Supp. 3d 289, 298 (S.D.N.Y. 2017) (finding plaintiffs cannot “entirely
avoid[] [the Colorado River doctrine] by the simple expedient of naming additional parties”).
Second, Plaintiffs seek to litigate “substantially the same issues” in both forums. See
Krondes, 2018 WL 2943774, at *3 (where litigants “file actions in district courts seeking to . . .
enjoin an ongoing state foreclosure action based on alleged violations of federal and state law . . .
courts agree: although Colorado River abstention is narrow, it applies in such situations”). The
Amended Complaint alleges that Defendants violated various federal laws by fraudulently
commencing and maintaining the Foreclosure Action, and also alleges that BNYM has no
standing to pursue the Foreclosure Action. (See generally Am. Compl.) These claims are
substantially identical to the defenses and counterclaims raised — and rejected — in the
Foreclosure Action. (See Roy Answer and Countercl., annexed to Lipkin Decl. as Ex. D, Docket
Entry No. 61-6; Summary Judgment Order.)
Moreover, although the relief need not be the same, see Potente, 2018 WL 1882848, at
*4, Plaintiffs’ request for declaratory and injunctive relief preventing further prosecution of the
Foreclosure Action and enjoining the sale of the Property further demonstrates the parallel nature
of the two actions, see Krondes, 2018 WL 2943774, at *3 (finding that although plaintiff asserted
five federal claims, including RICO, TILA, and due process claims, the federal proceeding was
“essentially the same” as the state foreclosure action (collecting cases)); see also Sitgraves v.

(originator of loan). (See Am. Compl. 1–22.) In addition, there are a number of notary public
and attorney Defendants who worked on documents connected to the Foreclosure Action. (Id.)
10

Fed. Home Loan Mortg. Corp., 265 F. Supp. 3d 411, 413 (S.D.N.Y. 2017) (actions were parallel
when both questioned whether Bank of America “may enforce the subject note and
mortgage”); Phillips, 252 F. Supp. 3d at 296 (“[T]he fact that [p]laintif[f] seek[s] different . . .
forms of recovery in this action does not defeat parallelism, where the underlying events remain
identical.”)
2.

The Colorado River factors weigh in favor of abstention

Having found that the two actions are parallel, the Court next considers the six-part
balancing test. First, the state court has jurisdiction over the res — i.e. the Property. Where the
state court proceeding is a foreclosure action, “this factor strongly favors abstention.” Krondes,
2018 WL 2943774, at 3 (citing FDIC v. Four Star Holding Co., 178 F.3d 97, 101–02 (2d Cir.
1999) (finding this factor “dispositive”).
Second, because both forums are within the state of New York, and absent any contrary
indication from the parties, the forums are equally convenient. The Second Circuit has held that
where the federal court is “just as convenient” as the state court, that factor favors retention of
the case in federal court. Vill. of Westfield v. Welch’s, 170 F.3d 116, 122 (2d Cir. 1999)
(citations omitted); but see Phillips v. Citibank, N.A., 252 F. Supp. 3d 289, 299 (S.D.N.Y. 2017)
(finding neutrality in inconvenience weighs in favor of abstention because “there is plainly
inconvenience in having to litigate actively in both state and federal courts at the same time.”
(citing Lefkowitz v. Bank of New York, 676 F. Supp. 2d 229, 275 (S.D.N.Y. 2009)).
Third, staying or dismissing the federal litigation would avoid piecemeal litigation. See
Sitgraves, 265 F. Supp. 3d at 414 (“Avoidance of piecemeal litigation weighs in favor of
abstention where a party’s claims in the federal action “can and should be handled as a defense
to the foreclosure claim.” (citing Bromfield, 2016 WL 632443, at *5; and then citing Wenegieme

11

v. Bayview Loan Servicing, No. 14-CV-9137, 2015 WL 2151822, at *3 (S.D.N.Y. May 7,
2015)). As discussed above, Roy raised claims of fraud, standing, and breaches of TILA in the
Foreclosure Action. (See Roy Answer and Countercl.) The Court would necessarily have to
decide these same factual and legal arguments, which form the basis of Plaintiffs’ claims in this
action. (See Am. Compl. ¶¶ 81–149.) Because maintaining these parallel proceedings would
“waste judicial resources and invite duplicative effort,” this factor weighs in favor of abstention.
See Arkwright–Boston Mfrs. Mut. Ins. Co. v. City of New York, 762 F.2d 205, 211 (2d Cir.
1985) (noting that “the danger of piecemeal litigation is the paramount consideration”).
The fourth factor also weighs in favor of abstention. The state court action has been
pending for over eight years, and it has reached an advanced stage. (See Foreclosure Action);
Teves Realty, Inc. v. Bartley, No. 14-CV-3227, 2017 WL 1232443, at *3 (E.D.N.Y. Mar. 31,
2017) (finding Colorado River abstention applied to foreclosure action that “ha[d] been active
and ongoing for several years” prior to federal court action).
The fifth factor weighs against abstention because federal law provides the “rule of
decision” for Plaintiffs’ RICO, TILA, and due process claims. Nevertheless, the issues relate to
the validity of the mortgage and foreclosure process — matters of state law. See Krondes, 2018
WL 2943774, at 4 (“Although [plaintiff] asserts five federal causes of action, each relies on the
same underlying facts: whether his mortgage is valid and whether the [d]efendants may foreclose
on his property, matters of state law.” (citations omitted)); see also Bromfield, 2016 WL 632443,
at *5 (“Although the Complaint purports to invoke federal law, the allegations do not come close
to stating a colorable federal claim.”).
Finally, the sixth factor weighs in favor of abstention. The state court’s procedures are
adequate to protect Plaintiffs’ federal rights, demonstrated by the fact that the state court has

12

already considered Roy’s counterclaims, brought pursuant to a federal statute.
Because most of the Colorado River factors weigh in favor abstention, the Court abstains
from jurisdiction over this case and dismisses the action pursuant to Rule 12(b)(1) of the Federal
Rules of Civil Procedure.
Having found that the Court lacks jurisdiction over Plaintiffs’ claims, the Court declines
to decide whether Plaintiffs’ claims are time-barred.
d.

Leave to amend

Judge Bloom recommended that the Court deny Plaintiffs leave to amend the Amended
Complaint because any further amendment would be futile. (R&R 14 (citing De Jesus v. Sears,
Roebuck & Co., 87 F.3d 65, 72 (2d Cir. 1996).) Plaintiffs do not object to this finding, request
leave to amend to file a second amended complaint, or offer any facts suggesting they could cure
the deficiencies in their claims. (See Pls. Obj.) As a result, the Court dismisses Plaintiffs’
Amended Complaint without leave to amend.

13

III. Conclusion
For the foregoing reasons, the Court finds that the Colorado River abstention doctrine
bars Plaintiffs’ claims and dismisses the Amended Complaint. The Court also adopts Judge
Bloom’s recommendations and dismisses Plaintiffs’ request for injunctive relief as also barred by
the Anti-Injunction Act, and denies their motion for sanctions. The Clerk of Court is direct to
close this case.
SO ORDERED:
s/ MKB
MARGO K. BRODIE
United States District Judge
Dated: September 30, 2018
Brooklyn, New York

14