Smith v. Smith

Filing 54

MEMORANDUM DECISION AND ORDER. The plaintiff's motion for default judgment is denied, and this case is dismissed. The Clerk of Court is respectfully directed to close this case. Ordered by Judge Ann M. Donnelly on 5/10/2022. (Greene, Donna)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------- X
DYANE V. SMITH,
:
Plaintiff,

:

- against DAVID R. SMITH,
Defendant.

: MEMORANDUM DECISION AND
ORDER
:
19-CV-1638 (AMD) (RML)
:

:
--------------------------------------------------------------- X
ANN M. DONNELLY, United States District Judge:
The pro se plaintiff filed this lawsuit against her ex-husband in March of 2019, seeking,
in essence, to force him to pay outstanding federal income tax for the tax years 2000 and 2001;
the plaintiff’s claims arise out of her 2003 Connecticut divorce from the defendant. 1 (ECF No.
1.) Before the Court are the plaintiff’s objections to Magistrate Judge Robert M. Levy’s
recommendation that I deny the plaintiff’s motion for default and dismiss the case. For the
reasons that follow, I adopt Judge Levy’s thorough and persuasive Report and Recommendation
in its entirety.
BACKGROUND
The plaintiff and the defendant divorced in 2003. As part of the final decree, the
Connecticut Superior Court awarded the plaintiff a Redding, Connecticut home; the court also
ruled that the defendant “was to ‘be responsible for all debts on his financial affidavit, as well as
all debts in his name for which he could be liable, which are not yet reflected as debts on his
financial affidavit, particularly those pertaining to taxes’ and to ‘hold [the plaintiff] indemnified
and harmless for the debts the court has ordered him liable.’” (ECF No. 51 at 2 (emphasis

1

Although the plaintiff is pro se, she is a lawyer.

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omitted).) The plaintiff sued the defendant in this Court, claiming “[v]iolation of the [state
court] Final Judgment Decree,” unjust enrichment and intentional infliction of emotional distress
(“IIED”). (ECF No. 1 at 1.)
This is the plaintiff’s fourth motion for default judgment. Judge Levy recommended that
I deny the plaintiff’s first motion because there is no private right of action to enforce a federal
tax lien, and that her recourse was in state court because her claims were “matrimonial in
nature.” 2 (ECF No. 10 at 4.) The plaintiff objected to the Report and Recommendation, made a
“motion for summary judgment,” and asked to amend her complaint. (ECF Nos. 13, 14.) I
directed her to file the proposed amended complaint, and granted her request to amend, which
mooted her motion for default judgment. The plaintiff filed an amended complaint on January
17, 2020 and sent it to the defendant by certified mail. (ECF No. 16.) The defendant did not
respond, and the Clerk of Court entered a certificate of default against him. (ECF No. 18.) On
March 11, 2020, the plaintiff again moved for default judgment (ECF No. 19), and I referred the
motion to Judge Levy for a Report and Recommendation.
In his August 5, 2020 Report and Recommendation, Judge Levy recommended that I
deny the plaintiff’s motion because she did not properly serve the amended complaint; instead
she “simply mailed the Amended Complaint to the defendant at his purported address.” (ECF
No. 20 at 2.) The plaintiff objected to Judge Levy’s report. (ECF No. 22.) I adopted Judge
Levy’s recommendation on October 29, 2020. (ECF No. 24.)
The plaintiff filed a second amended complaint on November 4, 2020. (ECF No. 26.)
This time, a process server left the summons at the defendant’s purported residence with a “cotenant” named “Hariclia ‘Doe.’” (ECF No. 28-1.) Once again, the plaintiff moved for default

2

Judge Levy did not address the plaintiff’s failure to serve the defendant properly.

2

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judgment on December 17, 2020, and I referred the motion to Judge Levy. (ECF No. 32.) Judge
Levy recommended that I deny the plaintiff’s motion because she did not establish that the
defendant lived at the address where the process server delivered the summons. (ECF No. 34 at
2.) The plaintiff also objected to this recommendation. (ECF No. 36.) I adopted Judge Levy’s
recommendation on August 11, 2021 and directed the plaintiff to serve the defendant with an
amended complaint and to file an affidavit from a process server sufficient to establish proof of
the defendant’s current address. (ECF No. 37.) Instead, the plaintiff filed four successive
motions for “a more definite statement,” each of which I denied. (ECF Nos. 38-41.) Then on
August 17, 2021, the plaintiff filed a motion for reconsideration, in which she asked that the
“Court reconsider the evidence” she submitted with her objection to Judge Levy’s Report and
Recommendation. (ECF No. 42.) I denied the motion for reconsideration on August 19, 2021.
(ECF No. 43.)
On September 1, 2021, the plaintiff filed proof of service, showing that the defendant was
personally served with the amended complaint at his residence. (ECF No. 46.) The Clerk of the
Court noted the defendant’s default on September 22, 2021. (ECF No. 49.) On October 11,
2021, the plaintiff moved for default judgment and contempt sanctions, and I referred the motion
to Judge Levy. (ECF No. 50.) On March 25, 2022, Judge Levy issued a comprehensive Report
and Recommendation recommending that I deny the plaintiff’s motion and dismiss the case
because she did not state a claim for unjust enrichment, the alleged conduct did “not come close
to meeting [the] high standard” for IIED, and because the Court does not have jurisdiction to
enforce the Connecticut state court divorce judgment. (ECF No. 51.) The plaintiff objected to
Judge Levy’s Report and Recommendation. (ECF No. 53.) For the reasons that follow, I adopt
Judge Levy’s Report and Recommendation in its entirety.

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STANDARD OF REVIEW
A district court “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). “If a party ‘makes
only conclusory or general objections, or simply reiterates [the] original arguments, the Court
reviews the Report and Recommendation only for clear error.’” Velasquez v. Metro Fuel Oil
Corp., 12 F. Supp. 3d 387, 397 (E.D.N.Y. 2014) (quoting Pall Corp. v. Entegris, Inc., 249
F.R.D. 48, 51 (E.D.N.Y. 2008)). The district judge must evaluate proper objections de novo and
“may accept, reject, or modify the recommended disposition.” Fed. R. Civ. P. 72(b)(3).
“[E]ven in a de novo review of a party’s specific objections,” however, “the court will not
consider ‘arguments, case law and/or evidentiary material which could have been, but were not,
presented to the magistrate judge in the first instance.’” Brown v. Smith, No. 09-CV-4522, 2012
WL 511581, at *1 (E.D.N.Y. Feb. 15, 2012) (quoting Kennedy v. Adamo, No. 02-CV-1776. 2006
WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)) (alterations omitted). Moreover, “the district court
is ‘permitted to adopt those sections of a magistrate judge’s report to which no specific objection
is made, so long as those sections are not facially erroneous.’” Sasmor v. Powell, No. 11-CV4645, 2015 WL 5458020, at *2 (E.D.N.Y. Sept. 17, 2015) (quoting Batista v. Walker, No. 94CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)).
DISCUSSION
In objecting to Judge Levy’s Report and Recommendation, the plaintiff largely repeats
the arguments she made in her motion for default judgment and contempt sanctions (see, e.g.,
ECF No. 53 at 5, 10 (“Below in relevant part is the discussion set forth in the Plaintiff’s
Memorandum [in support of the motion for default judgment and contempt sanctions.]”)), and
also raises arguments about findings that Judge Levy did not make in his Report and
Recommendation. (See id. at 8.) For example, the plaintiff objects that the Rooker-Feldman
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doctrine does not apply to her claims. (Id. at 8-9.) However, Judge Levy did not discuss the
Rooker-Feldman doctrine. Rather he opined that the domestic relations exception to diversity
jurisdiction applied to the plaintiff’s claim that the defendant violated the terms of the 2003
Connecticut state court divorce judgment. (ECF No. 51 at 7.) Because the plaintiff simply
reiterates the arguments she made in the motion for default judgment and contempt sanctions, I
review Judge Levy’s Report and Recommendation for clear error. See Velasquez, 12 F. Supp. 3d
at 397.
Judge Levy’s characteristically well-reasoned and careful Report and Recommendation
contains no error. Judge Levy is correct that the domestic relations exception to diversity
jurisdiction applies to the facts of this case, and the Court does not have jurisdiction to enforce
the terms of a state court divorce decree. “Under this exception, federal courts are divested of
jurisdiction in ‘cases involving the issuance of a divorce, alimony, or child custody decree,’ and
should further abstain from exercising jurisdiction over cases ‘on the verge’ of being
matrimonial in nature.” Hamilton v. Hamilton-Grinols, 363 F. App’x 767, 769 (2d Cir. 2010)
(quoting Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992) and Am. Airlines v. Block, 905 F.2d
12, 14 (2d Cir. 1990) (per curiam)); see also Am. Airlines, 905 F.2d at 14 (“A federal court
presented with matrimonial issues or issues ‘on the verge’ of being matrimonial in nature should
abstain from exercising jurisdiction so long as there is no obstacle to their full and fair
determination in state courts.”). 3
As Judge Levy explained, the “[p]laintiff has cited no authority demonstrating that this
[C]ourt has jurisdiction to enforce the Connecticut Superior Court Divorce Judgment or to find
3

Although the Second Circuit decided American Airlines, 905 F.2d 12 (2d Cir. 1990) before the Supreme
Court decided Ankenbrandt v. Richards, 504 U.S. 689 (1992), courts in the Second Circuit have
continued to employ the court’s “on the verge” language. See Genger v. Genger, 252 F. Supp. 3d 362,
366 (S.D.N.Y. 2017) (collecting cases).

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[the] defendant in contempt of that judgment.” (ECF No. 51 at 7.) On the contrary, the Second
Circuit and courts in this circuit “have found that claims verged on being matrimonial in nature
where a plaintiff sought relief related to the alleged violation of a state court order distributing
marital property.” Ranney v. Bauza, No. 10-CV-7519, 2011 WL 4056896, at *3 (S.D.N.Y. Aug.
31, 2011) (quotation marks and citation omitted). In Hamilton, the Second Circuit applied the
domestic relations doctrine exception because the plaintiff’s request was “grounded in his exwife’s purported violation of a New York state court Order for Temporary Support and a New
York state court Final Judgement of Divorce, both of which, in addition to assigning
responsibility for outstanding loans and debts, distribute[d] marital property and provide[d] for
child custody arrangements and child support.” Hamilton, 363 F. App’x at 769. The court
explained that “[t]he obligation that [the plaintiff] seeks to enforce is . . . ‘matrimonial in nature’
and is best left to the greater interest and expertise of state courts in this field.” Id. (internal
quotation marks omitted); see also Ranney, 2011 WL 4056896, at *3-4 (finding that the
plaintiff’s claims were “sufficiently ‘on the verge of being matrimonial in nature’ to warrant
abstention” because the agreement at issue was incorporated into a divorce judgment); Melnick v.
Adelson-Melnick, 346 F. Supp. 2d 499 (S.D.N.Y. 2004) (finding that although the plaintiff did
not seek a divorce, alimony or custody decree, abstention was appropriate because the plaintiff’s
claim for breach of a separation agreement was on the verge of being matrimonial in nature);
Weiss v. Weiss, 375 F. Supp. 2d 10, 16 (D. Conn. 2005) (finding that the domestic relations
exception precluded jurisdiction because the agreement at issue “was inextricably tied to the
remainder of the property settlement, which was specifically incorporated by reference into the
divorce judgment”).

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The plaintiff “seeks to enforce the [Connecticut] State Court’s indemnification clause [in
the divorce judgment] intended to protect her from harm from [the defendant’s] failure, refusal
and neglect to pay his federal tax debt.” (ECF No. 50 at 14.) As Judge Levy found, this claim
verges on being matrimonial in nature. (ECF No. 51 at 7); see Hamilton, 363 F. App’x at 769;
Ranney, 2011 WL 4056896, at *3. The plaintiff has not identified any obstacle to the full and
fair determination of this claim in state court. Therefore, the Court should abstain from
exercising jurisdiction over the plaintiff’s claim to enforce the state court judgment.
I have also carefully reviewed Judge Levy’s recommendations with respect to plaintiff’s
claims for unjust enrichment and IIED, and find no error. Judge Levy is correct that the plaintiff
has not stated a claim for unjust enrichment because she “has not paid any money to satisfy [the]
defendant’s tax debt,” and her claim for damages “rest[s] on her inability to refinance her
mortgage and lower her interest rate due to the tax lien.” 4 (ECF No. 51 at 4); see Roller v. Red
Payments L.L.C., No. 19-CV-5285, 2021 WL 505558, at *6 (E.D.N.Y. Feb. 11, 2021) (“[W]here
Plaintiffs have not and . . . cannot plead that they paid any money to Defendant, there can be no
unjust enrichment.”). In addition, to assert a claim for IIED, “[a] plaintiff must show that the
defendant’s conduct was ‘so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized society.’” (ECF No. 51 at 5 (quoting Jain v. City of New York, No. 20-CV-5442, 2021
WL 6064204, at *4 (S.D.N.Y. Dec. 22, 2021)).) Judge Levy correctly found that the alleged
conduct did “not come close to meeting this high standard.” (Id.)
Accordingly, I adopt the Report and Recommendation in its entirety.

4

The plaintiff acknowledges that “[i]n 2021[,] the United States withdrew the federal tax liens
encumbering the [p]laintiff’s property.” (ECF No. 53 at 4.)

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CONCLUSION
For these reasons, the plaintiff’s motion for default judgment is denied, and this case is
dismissed. The Clerk of Court is respectfully directed to close this case. 5

SO ORDERED.

s/Ann M. Donnelly

___________________________
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
May 10, 2022

5

The plaintiff has amended her complaint twice, and has not asked to file a third amended complaint. See
Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (“[I]t is well established that leave to amend a complaint
need not be granted when amendment would be futile.”); see also Hamilton, 363 F. App’x at 768
(determining that granting the plaintiff leave to amend his pleading was “not appropriate” because the
domestic relations doctrine exception precluded his claims).

8