Brewer v. U.S. Bank, NA et al

Filing 24

MEMORANDUM & ORDER: Plaintiff's complaint is dismissed in its entirety for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3). Although plaintiff paid the filing fee to bring the action, 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. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). The Clerk of the Court is respectfully directed to enter judgment, close this case, and mail plaintiff a copy of this order. ORDER ATTACHED. Ordered by Judge Natasha C. Merle on 11/22/2024. (copy mailed). (AG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

ANTHONY BREWER,
Plaintiff,

MEMORANDUM & ORDER
24-cv-02804 (NCM)(LB)

– against –
U.S. BANK, NA; KATHERINE LEVINE;
SERGIO JIMENEZ; and
NOVICK E. POMERANTZ,
Defendants.
NATASHA C. MERLE, United States District Judge:
Pro se plaintiff Anthony Brewer brings this pro se action under 42 U.S.C. § 1983 in
relation to landlord tenant and foreclosure matters. Compl., ECF. No. 1. 1 On September
20, 2024, this Court issued an Order to Show Cause (“September Order”), which directed
plaintiff to show cause why the action should not be dismissed for lack of subject matter
jurisdiction. September Order at 6. Plaintiff responded to the Court’s order, Order to
Show Cause Response (“OTSC Response”), ECF Nos. 21, 23, and defendants Katherine
Levine and Sergio Jimenez replied in opposition, ECF No. 22. For the reasons stated
below, plaintiff’s complaint is DISMISSED. 2

Page numbers for the Complaint, ECF No. 1, refer to the page numbers assigned in
ECF filing headers.
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2

Plaintiff’s Summary Judgment Motion (“Pl. MSJ”), ECF No. 21 is DENIED as

moot.
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BACKGROUND
Plaintiff brings this action in connection with property located at 71 Pilling Street
in Brooklyn, New York, alleging that a landlord tenant holdover proceeding was
improperly brought against him in Kings County Housing Court in 2022. See generally
71 Pilling Project LLC v. Anthony Brewer, No. LT-312152-22/KI. Plaintiff asserts that the
judge presiding over those proceedings, the Honorable Sergio Jimenez, “insist[ed] upon
taking me[,] Anthony Brewer[,] a secured Creditor[,] to trial in an [sic] Hold[over]
eviction proceeding for the home I purchased [in] September 2012.” Compl. at 4. It also
appears that plaintiff brought an action in Kings County Supreme Court against 71 Pilling
Project LLC, who asserts rightful ownership of the subject property. See generally
Anthony Brewer v. 71 Pilling Project LLC, No. 492/2022. Plaintiff argues that in the 71
Pilling Project action, the Honorable Katherine Levine “failed to address [his] 60B motion
for reconsideration and she has made a bad ruling that effects a deed filing as well as not
acknowledged [him] as a secured party creditor in light of the evidence presented.”
Compl. at 5.
Plaintiff further alleges that attorneys representing 71 Piling Project LLC presented
“false documents under oath in contempt of court in landlord tenant and supreme court,”
and “go as far as completing the process with morgage [sic] fraud after the eviction with
a referee deed.” Compl. at 5. Finally, plaintiff states that he, “is also before the Mortgage
court now after finding false documents were file[d] there by US Bank NA trying to
foreclose on a property that never had a mortgage.” Compl. at 5. Plaintiff seeks money
damages and for this Court to intervene in his state court actions. Compl. at 5.
In the September Order, the Court informed plaintiff that the Court lacked subject
matter jurisdiction due to judicial immunity, the anti-injunction act, and the lack of any
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federal question or diversity jurisdiction apparent in plaintiff’s complaint. September
Order at 5–6. The Court gave plaintiff an opportunity to show cause why the action should
not be dismissed despite the clear deficincies.
STANDARD OF REVIEW
Federal courts have limited subject matter jurisdiction, restricting the types of
cases they can hear. See Funk v. Belneftekhim, 861 F.3d 354, 371 (2d Cir. 2017). There are
two types of federal subject matter jurisdiction: federal question jurisdiction, which
requires a claim based on a federal law, see 28 U.S.C. § 1331, and diversity jurisdiction,
which requires a lawsuit with a value of greater than $75,000 and in which no defendant
lives in the same state as the plaintiff, see 28 U.S.C. § 1332. The plaintiff bears the burden
of establishing either type of subject matter jurisdiction. Makarova v. United States, 201
F.3d 110, 113 (2d Cir. 2000). If the Court “determines it lacks subject matter jurisdiction,”
it must “‘dismiss the complaint in its entirety.’” Do No Harm v. Pfizer Inc., 96 F.4th 106,
121 (2d Cir. 2024) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) and citing
U.S. Const. art. III, § 2).
Moreover, at the pleadings stage of the proceeding, the Court must assume the
truth of “all nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662
(2009)).3 A complaint must plead sufficient facts to “state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Pro se complaints are
“held to less stringent standards than formal pleadings drafted by attorneys.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The Court liberally reads a pro se complaint and

Throughout this opinion, the Court omits all internal quotation marks, footnotes,
and citations, and adopts all alterations, unless otherwise indicated.

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interprets it as raising the strongest arguments it suggests. Id.; Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191–93 (2d Cir. 2008).
Regardless of whether a plaintiff has paid the filing fee, a district court has the
inherent authority to dismiss a case, sua sponte, if it determines that the action is
frivolous or the court lacks jurisdiction over the matter. Fitzgerald v. First E. Seventh St.
Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000). “[A] complaint will [also] be dismissed
as frivolous when it is clear that the defendants are immune from suit.” Kelsey v. Clark,
No. 22-22, 2023 WL 1980307, at *1 (2d Cir. Feb. 14, 2023) (summary order) (quoting
Montero v. Travis, 171 F.3d 757, 760 (2d Cir. 1999)).
DISCUSSION
The plaintiff’s response to the Court’s September Order fails to provide a basis for
this Court’s jurisdiction over this matter. Rather, as discussed at more length below,
plaintiff mistakenly asserts that he has subject matter jurisdiction due to Federal Rule of
Civil Procedure 60(b). Therefore, the Court finds that it lacks subject matter jurisdiction
to review plaintiff’s claims for the reasons set forth in the September Order.
I.

Judicial Immunity and Anti-Injunction Act

In the September Order, the Court informed plaintiff that the Court lacks
jurisdiction over plaintiff’s claims due to judicial immunity and the Anti-Injunction Act
(“AIA”). This reasoning remains intact.
As the Court stated in its September Order, plaintiff cannot bring his claims against
Judges Sergio Jimenez and Katherine Levine. Judges normally have absolute immunity
from suits for damages arising out of judicial acts performed in their judicial capacities.
Butcher v. Wendt, 975 F.3d 236, 241 (2d Cir. 2020). “[E]ven allegations of bad faith or
malice cannot overcome judicial immunity.” Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir.
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2009). Rather, judicial immunity does not apply where judges act “outside” of their
judicial capacity, or if judicial actions were taken “in the complete absence of all
jurisdiction.” Mireles v. Waco, 502 U.S. 9, 11–12 (1991). As noted in the September Order,
“plaintiff’s claims against Judges Jimenez and Levine solely relate to proceedings before
them in state court.” September Order at 4. Plaintiff’s response lacks any additional
allegations that indicate that Judges Jimenez and Levine acted outside of their judicial
capacity. See generally OTSC Response.
Therefore, judicial immunity applies and plaintiff’s claims must be dismissed
against defendants Jimenez and Levine. See, e.g., Kelsey, 2023 WL 1980307, at *1; Reiss
v. Baron, No. 22-cv-00908, 2022 WL 624420, at *2 (S.D.N.Y. Mar. 3, 2022) (dismissing
claims under Section 1983 as frivolous due to judicial immunity).
To the extent that plaintiff seeks the Court’s intervention in ongoing state
proceedings, the AIA bars such relief. In particular, the AIA provides that “[a] court of the
United States may not grant an injunction to stay proceedings in a State court except as
expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or
to protect or effectuate its judgments.” 28 U.S.C. § 2283. Where none of the exceptions
apply, the AIA functions as “an absolute prohibition against any injunction of any statecourt proceedings.” Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977); see also
Walker v. Mirbourne NPN 2LLC, No. 18-cv-05211, 2018 WL 4494875, at *3 (E.D.N.Y.
Sept. 19, 2018) (finding foreclosure action seeking injunctive relief was barred by the
AIA). As articulated in the September order, “[p]laintiff does not assert that any of the
AIA exceptions apply, nor does the Court so find.” September Order at 5. Plaintiff’s
response similarly fails to allege that any AIA exception applies. See generally OTSC
Response.
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Therefore, the Court refrains from intervening in plaintiff’s claims as they relate to
a pending state court proceeding and such claims are likewise dismissed.
II.

Landlord-Tenant Issues

Lastly, plaintiff has not “demonstrate[d] that the Court has the power to hear his
housing-related claims.” September Order at 6. As indicated in the September Order,
plaintiff has not asserted how the alleged conduct by defendants U.S. Bank and
Pomerantz raises a federal question or satisfies the requirements for diversity
jurisdiction. September Order at 6. In response, plaintiff appears to raise two separate
arguments for jurisdiction: Federal Rule of Civil Procedure 60(b) and a non-resident
property investor. Both arguments fail.
Plaintiff asserts that Federal Rule of Civil Procedure 60(b) provides the Court with
subject matter jurisdiction over his claims. OTSC Response at 1. This is incorrect. Rule
60(b) provides a means by which a party may request relief from a court to correct or
otherwise relieve a party from a final judgment, order, or proceeding of a federal court.
See Fed. R. Civ. P. 60(b). Moreover, where a federal court enters judgment without
jurisdiction, as plaintiff requests the Court to do here, Rule 60(b)(4) may provide relief
from that final judgment. See Sec. & Exch. Comm’n v. Romeril, 15 F.4th 166, 171 (2d Cir.
2021). Rule 60(b) therefore does not independently provide jurisdiction over plaintiff’s
claims.
Second, plaintiff asserts that there is subject matter jurisdiction because an
investor in the property had New Jersey license plates. OTSC Response at 4. This
argument is untenable. First, it does not appear that the investor is named in this suit. See
Compl. at 1. Second, even if the investor was named, diversity jurisdiction requires that
all defendants reside in different states than the plaintiff. See 28 U.S.C. § 1332. Since
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plaintiff has not alleged that there is complete diversity or that the requirements are
otherwise met, the Court does not have jurisdiction over plaintiff’s claims.
Therefore, all remaining claims must be dismissed.
CONCLUSION
For the reasons stated above, plaintiff’s complaint is dismissed in its entirety for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).
Although plaintiff paid the filing fee to bring the action, 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. See
Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of the Court is respectfully directed to enter judgment, close this case,
and mail plaintiff a copy of this order.

SO ORDERED.
__/s/ Natasha C. Merle____
NATASHA C. MERLE
United States District Judge
Dated:

November 22, 2024
Brooklyn, New York

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