Commins v. Habberstad BMW

Filing 50

ORDER granting 40 Motion to Dismiss for Failure to State a Claim; denying 42 Motion to Strike ; denying 43 Motion for Recusal. ; denying 48 Motion to Dismiss for Failure to State a Claim; granting 21 Motion to Dismiss. For the reas ons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendants' motions to dismiss are granted. The Clerk of the Court shall enter judgment accordingly and close the case. IT IS FURTHER ORDERED that the plaintiff& #039;s motions to strike and for recusal are denied. IT IS FURTHER ORDER that defendant Habberstad's request for sanctions is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/20/2012. (O'Neil, Jacquelyn) Modified on 3/20/2012 (Bollbach, Jean).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-cv-2419 (JFB)(WDW)
_____________________

CHRISTOPHER J. COMMINS,
Plaintiff,
VERSUS

HABBERSTAD BMW, SUFFOLK COUNTY, SUFFOLK COUNTY CIVIL COURTS 10TH
JD, SUFFOLK COUNTY ATTORNEY’S OFFICE,
Defendants.

___________________
MEMORANDUM AND ORDER
March 20, 2012
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Christopher J. Commins
(“plaintiff”) brings this action against
defendants
Habberstad
BMW
(“Habberstad”), Suffolk County, Suffolk
County District Court1, and the Suffolk
County Attorney’s Office2 (collectively the
“defendants”). Plaintiff seeks damages in the
amount of $190,000.00 from Habberstad for
alleged damages incurred to his automobile.
Plaintiff seeks legal redress from Suffolk
1

Plaintiff brings claims against the Suffolk County
Civil Court JD 10. As no Suffolk County Civil Court
exists, the Court construes plaintiff’s complaint as
one against the Suffolk County District Court.
2
As the Suffolk County Attorney’s Office is an
administrative division of Suffolk County, the Court
interprets plaintiff’s claim against Suffolk County
only.

County and the Suffolk County District
Court for an alleged civil violation of the
Racketeer
Influenced
and
Corrupt
Organizations Act (“RICO”), and seeks
damages of $42,606,000.00.
Habberstad
and
Suffolk
County
separately move to dismiss the amended
complaint, pursuant to Federal Rule of Civil
Procedure 12(b)(6). The Suffolk County
District Court moves to dismiss the amended
complaint, pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6).
Habberstad also asks that this Court impose
sanctions against plaintiff for bringing a
frivolous action. For the reasons set forth
below, the defendants’ motions to dismiss
are granted.
Habberstad’s request for
sanctions is denied.

I. BACKGROUND

Court, seeking $5,000 in property damages
for “fail to fix neglect rep[a]ir” (hereinafter
“Action #1.”) (Declaration in Support of
Habberstad’s Motion to Dismiss (the
“Habberstad Declaration”) at Ex. A.) The
court held a hearing on March 11, 2010.
(Id.) The scheduled arbitrator adjourned the
session because he had previously
represented Habberstad. (Am. Compl. at
18.) On September 1, 2010, a different
arbitrator decided the case on the merits and
ruled “in favor of Defendant against Plaintiff
of no cause for action.” (Habberstad
Declaration at Ex. B.) The decision was
filed with the County Clerk’s Office on or
about September 13, 2010, and a copy was
mailed to both plaintiff and defendant. (Id.)
Pursuant to applicable court rules, plaintiff
had 35 days from the date of the mailing of
the arbitrator’s award to request a trial de
novo. (Id. at Ex. C.)

A. Facts
The following facts are taken from the
amended complaint and are not findings of
fact by the Court. They are assumed to be
true for the purpose of deciding this motion
and are construed in a light most favorable
to the plaintiff, the non-moving party.
In 2008, plaintiff brought his 2000 323i
BMW to Habberstad for various overheating
problems. (Amended Complaint (“Am.
Compl.”) at 11, 19.3) The service
department suggested certain repairs, which
plaintiff agreed to and paid for. (Id. at 19.)
Two days after picking up the car, the
plaintiff continued to have problems with
the car overheating, and was not able to start
the car. (Id.) Habberstad towed the car back
to their shop and did another test. (Id.)
Plaintiff states that Habberstad told him that
“they are not responsible for the DAMAGE
to the car.” (Id.) Plaintiff called another
automotive repair shop, which diagnosed a
different problem. (Id.) Plaintiff attempted
to get the service records from Habberstad,
but they put him on hold when he called and
did not call him back. (Id.) Plaintiff asked a
friend to get the records from Habberstad,
but Habberstad refused to give the records to
plaintiff’s friend. (Id.) Plaintiff alleges that
“BMW took a full avenge metal disable
handy cap person I cant fix the car because
Habberstad BMW kill the car.” (Id.)

Instead of requesting a trial, plaintiff
filed a Summons with Endorsed Complaint
in the Civil Court of the City of New York,
County of Queens on or about January 6,
2011 (hereinafter “Action #2”), seeking
legal redress for “Failure to provide repairs;
Damages caused to automobile for
$25,000.00 with interest from 3/25/09.”
(Habberstad Declaration at Ex. D.) Plaintiff
listed his address as a residence in Astoria,
Queens. (Habberstad Declaration at Ex. D.)
On May 1, 2011, Judge Harriet L.
Thompson issued a Decision and Order in
Action #2 dismissing the case on the
grounds that it was barred by res judicata.
(Habberstad Declaration at Ex. E.) Judge
Thompson noted that the plaintiff “had a full
and fair opportunity to litigate this matter
and in fact, after a full arbitration hearing, a
decision was made by the Arbitrator Steven
Schneir in Suffolk County.” (Habberstad
Declaration at Ex. E.) She explained further,
“The plaintiff is precluded from litigating
the identical claims again in this Court.”

B. Procedural History
1. Prior Actions
On January 19, 2010, plaintiff brought a
suit against Habberstad in Suffolk County
District Court, 5th District, Small Claims
3

The pages in plaintiff’s amended complaint are only
numbered through page 4. Accordingly, the Court
references the page numbers assigned by ECF.

2

(Habberstad Declaration at Ex. E.)
Defendant served a Notice of Entry on May
2, 2011 upon plaintiff. (Habberstad
Declaration at Ex. F.) That same day,
plaintiff filed a Notice of Appeal.
(Habberstad Declaration at Ex. G.)

The Court has fully considered the
parties submissions.
II. STANDARD OF REVIEW5
When a court reviews a motion to
dismiss for lack of subject-matter
jurisdiction, it “must accept as true all
material factual allegations in the complaint,
but [it is] not to draw inferences from the
complaint favorable to plaintiffs.” J.S. ex
rel. N.S. v. Attica Cent. Schs., 386 F.3d 107,
110 (2d Cir. 2004). Moreover, the court
“may consider affidavits and other materials
beyond the pleadings to resolve the
jurisdictional issue, but [it] may not rely on
conclusory or hearsay statements contained
in the affidavits.” Id. “The plaintiff bears
the burden of proving subject matter
jurisdiction by a preponderance of the
evidence.”
Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d
Cir. 2005).

2. The Instant Action
Plaintiff filed the complaint in this action
against Habberstad in the Eastern District of
New York on May 17, 2011. Plaintiff filed
an additional complaint against the Suffolk
County Attorney’s Office on June 2, 2011.
The two actions were consolidated on June
6, 2011, and plaintiff filed an amended
complaint.
Habberstad filed its motion to dismiss
the amended complaint on July 5, 2011.
Plaintiff replied in opposition on July 6,
2011, and Habberstad BMW responded on
July 7, 2011.
Suffolk County filed its motion to
dismiss on September 21, 2011. On
November 15, 2011, the County submitted a
letter in reply noting that the plaintiff had
failed to submit an opposition. On
November 16, 2011, the County submitted a
second letter enclosing documents that the
plaintiff had faxed to the County, and
requested that the Court consider those
documents as part of plaintiff’s response to
the County’s motion to dismiss.

In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This

On January 9, 2012, the Suffolk County
District Court filed its motion to dismiss.
Plaintiff has failed to file an opposition to
the Suffolk County District Court’s motion.4
4

Although plaintiff failed to file any opposition to
the Suffolk County District Court’s motion, the
Court declines to grant the motion solely on the
ground that it is unopposed and, instead, has analyzed
the merits of plaintiff’s claims. For the reasons set
forth herein, the Court finds that plaintiff has failed to
state a claim against the Suffolk County District

Court.
5
The only portion of the motions being analyzed
under Rule 12(b)(1) is the Eleventh Amendment
immunity issued raised by the New York State Office
of Court Administration. The remaining portions of
the motions are being analyzed under Rule 12(b)(6).

3

and documents attached to it or incorporated
in it by reference, (2) documents ‘integral’
to the complaint and relied upon in it, even
if not attached or incorporated by reference,
(3) documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss).

standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, 127
S.Ct. 1955.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” 129 S.Ct. at 1950.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to
construe the [plaintiff's] pleadings . . .
liberally.” McCluskey v. New York State
Unified Ct. Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008)); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). A pro se plaintiff's complaint, while
liberally interpreted, still must “‘state a
claim to relief that is plausible on its face.’”
Mancuso v. Hynes, 379 Fed. App’x 60, 61
(2d Cir. 2010) (citing Iqbal, 129 S.Ct. at
1949); see also Harris v. Mills, 572 F.3d 66,
72 (2d Cir. 2009) (applying Twombly and
Iqbal to pro se complaint).

III. DISCUSSION
A. Habberstad
Habberstad argues that plaintiff’s
amended complaint should be dismissed
because it is barred by the doctrines of res
judicata and collateral estoppel. For the
reasons set forth below, this Court agrees.6

The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider: “(1) facts alleged in the complaint

6

As noted supra, plaintiff alleges that “Habberstad
BMW took a full avenge mental disable handy cap
person . . .” (Am. Compl. at 19.) To the extent

4

1. Res Judicata

“(1) the previous action involved an
adjudication on the merits; (2) the previous
action involved the plaintiffs or those in
privity with them; and (3) the claims
asserted in the subsequent action were, or
could have been, raised in the prior action.”
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d
275, 285 (2d Cir. 2000) (citations omitted).
Finally, “[i]n determining whether a second
suit is barred by this doctrine, the fact that
the first and second suits involved the same
parties, similar legal issues, similar facts, or
essentially the same type of wrongful
conduct is not dispositive.” Maharaj v.
Bankamerica Corp., 128 F.3d 94, 97 (2d
Cir. 1997). “Rather, the first judgment will
preclude a second suit only when it involves
the same ‘transaction’ or connected series of
transactions as the earlier suit.” Id.
Therefore, as the Second Circuit has noted,
“the obvious starting point in a preclusion
analysis is a determination of the issues that
were litigated in the first action.” Flaherty v.
Lang, 199 F.3d 607, 613 (2d Cir. 1999).
Furthermore, in evaluating the res judicata
effect of a prior action, “courts routinely
take judicial notice of documents filed in
other courts, again not for the truth of the
matters asserted in the other litigation, but
rather to establish the fact of such litigation
and related filings.” Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991).

a. Legal Standard
The doctrine of res judicata, otherwise
known as claim preclusion, prevents parties
from re-litigating issues in subsequent
litigation that were or could have been
litigated in a prior action. See Allen v.
McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66
L.Ed.2d 308 (1980). “In applying the
doctrine of res judicata, [a court] must keep
in mind that a state court judgment has the
same preclusive effect in federal court as the
judgment would have had in state court.”
Burka v. N.Y.C. Transit Auth., 32 F.3d 654,
657 (2d Cir. 1994). Because the prior
decision at issue was rendered by a New
York State court, New York’s transactional
analysis of res judicata governs, an analysis
which “bar[s] a later claim arising out of the
same factual grouping as an earlier litigated
claim even if the later claim is based on
different legal theories or seeks dissimilar or
additional relief.” Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994). This
transactional approach “does not . . . permit
a party to remain silent in the first action and
then bring a second one on the basis of a
preexisting claim for relief that would
impair the rights or interests established in
the first action.” Beckford v. Citibank N.A.,
No. 00-CV-205, 2000 WL 1585684, at *3
(S.D.N.Y. Oct. 24, 2000) (quoting Henry
Modell & Co. v. Minister, Elders & Deacons
of Ref. Prot. Dutch Church, 68 N.Y.2d 456,
462 n. 2, 510 N.Y.S.2d 63, 502 N.E.2d 978
(N.Y.1986)). The doctrine applies only if

Moreover, “[t]he doctrines of res
judicata and collateral estoppel apply to
arbitration awards with the same force and
effect as they apply to judgments of a
court.” Mitra v. Global Financial Corp.,
No. 09-CV-4387 (DLI)(RLM), 2010 WL
1529264, at *1 (E.D.N.Y. Apr. 15, 2010)
(citing Mahler v. Campagna, 60 A.D.3d
1009, 1011, 876 N.Y.S.2d 143 (2d Dep’t
2009); United States Postal Serv. v.
Gregory, 534 U.S. 1, 16, 122 S.Ct. 431, 151
L.Ed.2d 323 (2001) (Ginsburg, J.,
concurring) (quoting Restatement (Second)

plaintiff has attempted to plead a claim pursuant to
the Americans With Disabilities Act against
Habberstad, that claim is without merit, as he has
alleged no facts which would support a plausible
claim under the ADA. This action relates to a dispute
over repairs to plaintiff’s car and it is abundantly
clear that such a dispute, given the allegations in this
case, could not as a matter of law give rise to a claim
under the ADA.

5

of Judgments § 84 (1982)); Streit v. Amdocs,
Inc., 307 F. App’x 505, 509 (2d Cir. 2009)).
Similarly, actions in small claims court also
have res judicata effect. See, e.g., Omara v.
Polise, 163 Misc.2d 989, 625 N.Y.S.2d 403
(Sup. Ct. App. Term 1995) (action barred by
res judicata where plaintiff previously
brought similar, unsuccessful actions against
defendant in small claims court).

plaintiff is attempting to appeal the
. . . [related decision] does not affect the
outcome of this motion. In New York, the
pendency of an appeal does not alter the res
judicata effect of the challenged judgment.”)
(citing cases). Thus, this second decision
also provides a separate basis for dismissal
of this action on res judicata grounds.

b. Application

Accordingly, plaintiff’s claims against
Habberstad are dismissed under the doctrine
of res judicata.

In this case, plaintiff’s claims are clearly
barred by the doctrine of res judicata by
Action #1. In Action #1, plaintiff sought
$5,000 from Habberstad for a purported
failure to repair his vehicle. Although
plaintiff is now seeking $190,000 from
Habberstad, the instant action still alleges
that he is entitled to damages from
Habberstad because of their failure to repair
his vehicle. Moreover, in Action #1, the
arbitrator made a final decision on the
merits, ruling “in favor of Defendant against
Plaintiff of no cause for action.” (Ex. B.)
Thus, in light of the determination in Action
#1, the claims in the instant case are barred
by the doctrine of res judicata.

2. Collateral Estoppel
Habberstad also contends, in the
alternative, that the claims, including a
conflict of interest claim or any civil RICO
claims, are barred by the doctrine of
collateral estoppel. As set forth below, the
Court agrees.
a. Legal Standard
“‘[C]ollateral estoppel . . . means simply
that when an issue of ultimate fact has once
been determined by a valid and final
judgment, that issue cannot again be
litigated between the same parties in any
future lawsuit.’” Leather v. Ten Eyck, 180
F.3d 420, 424 (2d Cir. 1999) (quoting Schiro
v. Farley, 510 U.S. 222, 232, 114 S.Ct. 783,
127 L.Ed.2d 47 (1994)). “Collateral
estoppel, like the related doctrine of res
judicata, has the dual purpose of protecting
litigants from the burden of relitigating an
identical issue with the same party or his
privy and of promoting judicial economy by
preventing needless litigation.” Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 326, 99
S.Ct. 645, 58 L.Ed.2d 552 (1979).

It should also be noted that in Action #2,
the Queens County Civil Court judge
determined that plaintiff’s claim, which is
nearly identical to the one at bar, was barred
by the previous determination in Action #1
under the doctrine of res judicata. That
decision has a preclusive effect even if
plaintiff is appealing such decision. See,
e.g., Galin v. United States, No. 08-CV2508 (JFB)(ETB), 2008 WL 5378387, at *9
(E.D.N.Y. Dec. 23, 2008) (“Plaintiff’s
argument that collateral estoppel does not
apply because the related case is on appeal is
unpersuasive given that a decision is ‘final’
when judgment is entered, even if an appeal
is later filed.”) (collecting cases); see also
Brown v. Mfrs. Hanover Trust Co., 602 F.
Supp. 549, 551 (S.D.N.Y. 1984)(“That the

Under the Full Faith and Credit Act, 28
U.S.C. § 1738, federal courts must give
state-court judgments the same preclusive
effect as the judgment would have in the
state from which it originated. See 28 U.S.C.
6

seeking damages up to $5,000.00.
On May 13, 2010, the Arbitrator,
David Ardam, recused himself based
on the fact that he acted as counsel
for the Defendant. The case was
adjourned to September 1, 2010. On
the adjourned date, a different
Arbitrator,
Steven
Schneir,
conducted a hearing and found “in
favor of Defendant against Plaintiff
of
no
cause
of
action. . . . Subsequently,
the
Plaintiff moved this Court by Order
to Show Cause made returnable on
May 2, 2011 stating that he
unintentionally missed his court date,
alleges the same conflict of interest
with the Suffolk County Arbitrator
discussed above . . .

§ 1738 (“[J]udicial proceedings of any court
of any . . . State . . . shall have the same full
faith and credit in every court within the
United States . . . as they have by law or
usage in the courts of such State . . . from
which they are taken”); see also Marvel
Characters, Inc. v. Simon, 310 F.3d 280,
286 (2d Cir. 2002) (“We apply federal law
in determining the preclusive effect of a
federal judgment and New York law in
determining the preclusive effect of a New
York State court judgment.” (internal
citations omitted)). “Under New York law,
collateral estoppel bars relitigation of an
issue when (1) the identical issue necessarily
was decided in the prior action and is
decisive of the present action, and (2) the
party to be precluded from relitigating the
issue had a full and fair opportunity to
litigate the issue in the prior action.” In re
Hyman, 502 F.3d 61, 65 (2d Cir. 2007)
(citations omitted); accord Hoblock v.
Albany Cty. Bd. of Elections, 422 F.3d 77,
94 (2d Cir. 2005).

(Habberstad Declaration at Ex E.)
The
Queens Civil Court then found that Action
#2 was barred by Action #1 under the
doctrine of res judicata.
(Habberstad
Declaration at Ex. E.) Thus, the same issue
of conflict of interest was raised in Action
#2 and plaintiff had a full and fair
opportunity to litigate it in the prior
proceeding. As noted supra, even if Action
#2 is the subject of an appeal, the doctrine of
collateral estoppel still applies. See also
Davis v. Oyster-Bay E. Norwich Cent. Sch.
Dist., No. 09-CV-1823, 2010 WL 3855237
(JFB)(ETB), at *4 (E.D.N.Y. Sept. 28,
2010) (“the state-court decision still has
collateral estoppel effect even though it is
pending on appeal”) (collecting cases).
Accordingly, the Court concludes, in the
alternative, plaintiff’s conflict of interest
cause of action must be dismissed because it
is barred by collateral estoppel. 7

b. Application
Plaintiff’s claim for conflict of interest,
in connection with Action #1, is barred by
the doctrine of collateral estoppel because it
was raised and decided in Action #2. In
Action #2 the Queens Civil Court Judge
stated:
This action was commenced to
recover money for alleged property
damage for defective repairs to the
Plaintiff’s automobile. On January
19, 2010, the Plaintiff commenced
an action in the Small Claims Part of
the District Court in Suffolk County
seeking legal redress for “property
damage” and for “failure to fix
neglect repair.” In that case, the
plaintiff alleged that he lived in
Northport, New York, and was

7

Habberstad also argues that plaintiff’s amended
complaint appears to only be alleging a civil RICO
claim against Suffolk County and the Suffolk County
District Court, but to the extent that plaintiff has
alleged a civil RICO claim against Habberstad, it is

7

B. Suffolk County District Court

Supreme Court has stated, “It is clear, of
course, that in the absence of consent a suit
in which the State or one of its agencies or
departments is named as the defendant is
proscribed by the Eleventh Amendment. . . .
This jurisdictional bar applies regardless of
the nature of the relief sought.” Pennhurst
State Sch. & Hospital v. Halderman, 465
U.S. 89, 100 (1984).

The Suffolk County District Court
argues that plaintiff’s cause of action is
barred by the Eleventh Amendment. For the
reasons set forth below, the Court agrees and
dismisses plaintiff’s complaint against the
Suffolk County District Court.
The Eleventh Amendment to the United
States Constitution provides:

Local District Courts in New York State,
such as the Suffolk County District Court,
are administered by the New York State
Office of Court Administration of the
Unified Court System. Accordingly, because
the State has not consented to suit, and there
is no express statutory waiver, the Suffolk
County District Court is entitled to Eleventh
Amendment Immunity and plaintiff’s claims
against the Suffolk County District Court
must be dismissed.8

The Judicial power of the United
States shall not be construed to
extend to any suit in law or equity,
commenced or prosecuted against
one of the United States by Citizens
of another State, or by Citizens or
Subjects of any Foreign State.
U.S. Const. amend. XI. “The reach of the
Eleventh Amendment has . . . been
interpreted to extend beyond the terms of its
text to bar suits in federal courts against
states, by their own citizens or by foreign
sovereigns . . . .” State Emps. Bargaining
Agent Coal. v. Rowland, 494 F.3d 71, 95 (2d
Cir. 2007) (quoting Mohegan Tribe &
Nation v. Orange County, 395 F.3d 18, 20
(2d Cir. 2004)) (alterations in original).
Thus, absent a state’s consent to suit or an
express statutory waiver, the Eleventh
Amendment bars federal court claims
against states. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 66 (1989). Agencies of
the state are also immune under the Eleventh
Amendment when the state is the real party
in interest. Cory v. White, 457 U.S. 85, 102
S.Ct. 2325, 72 L.Ed.2d 694 11982). As the

C. Suffolk County
Apart from listing the County of Suffolk
in the caption of the action, the amended
complaint is otherwise silent regarding any
alleged conduct on the part of the County.
Construing plaintiff’s complaint liberally, it
appears that plaintiff is attempting to hold
the County responsible for the unfavorable
determination he received in Suffolk County
Small Claims Court in Action #1. However,
as explained supra, the County does not
administer New York State Courts. Instead,
the New York State Office of Court
8

The Suffolk County District Court also argues that,
in the alternative, plaintiff’s claim must be dismissed
for failure to state a claim upon which relief may be
granted. The Court agrees. Plaintiff is essentially
attempting to have this Court review a claim he
brought in Small Claims Court. The proper avenue
for such a review is a state court appeal, not a federal
lawsuit. Plaintiff has utterly failed to allege any facts
that could state a plausible claim against the Suffolk
County District Court for any constitutional
violations, or any other theory of liability, that could
survive a motion to dismiss.

also barred by collateral estoppel. This Court agrees.
First, plaintiff’s amended complaint appears to only
allege a civil RICO claim against Suffolk County and
the Suffolk County District Court. However, to the
extent that the claim is alleged against Habberstad,
since plaintiff’s civil RICO claim is wholly based on
the alleged conflict of interest in Action #1,
plaintiff’s civil RICO claim must be dismissed under
the doctrine of collateral estoppel.

8

430 F.3d 560, 564 n.5 (2d Cir. 2005)
(“[C]onclusory or general allegations are
insufficient to state a claim for conspiracy
under § 1983.” (citing Ciambriello));
Sommer v. Dixon, 709 F.2d 173, 175 (2d
Cir. 1983) (“A complaint containing only
conclusory, vague, or general allegations of
conspiracy to deprive a person of
constitutional rights cannot withstand a
motion to dismiss.”); Green v. Bartek, No.
3:05CV1851, 2007 WL 4322780, at *3 (D.
Conn. Dec. 7, 2007) (“The Second Circuit
has consistently held that a claim of
conspiracy to violate civil rights requires
more than general allegations.”).

Administration administers the New York
State courts, such as the Suffolk County
Small Claims Court, through the Unified
Court System. Accordingly, any such claim
should not be lodged against the County,
and in any event, as discussed supra, is
barred by the Eleventh Amendment as
against New York State. Moreover, even
assuming, arguendo, that an employee of the
County made the decision in the Small
Claims Court that adversely affected the
plaintiff, that person would be entitled to
absolute judicial immunity. Huminski v.
Corsones, 396 F.3d 53 (2d Cir. 2005).
Suffolk County also argues that, even if
this Court was to construe plaintiff’s claim
as one for conspiracy pursuant to 42 U.S.C.
§ 1983 (“Section 1983”), that claim must
also be dismissed. This Court agrees.

In the instant action, plaintiff’s amended
complaint fails to indicate what right,
privilege or immunity plaintiff was deprived
of by Suffolk County’s actions.
Even
construing plaintiff’s amended complaint
liberally, the Court cannot discern what
rights plaintiff claims were violated. In
addition,
plaintiff’s
allegations
are
conclusory and vague, and thus insufficient
to allege conspiracy pursuant to Section
1983.
Accordingly, plaintiff’s claims
against Suffolk County are dismissed.

To prevail on a claim under Section
1983, a plaintiff must show: (1) the
deprivation of any rights, privileges, or
immunities secured by the Constitution and
its laws; (2) by a person acting under the
color of state law. 42 U.S.C. § 1983.
“Section 1983 itself creates no substantive
rights; it provides only a procedure for
redress for the deprivation of rights
established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993). In order to
state a claim for conspiracy pursuant to
Section 1983, a plaintiff must allege “(1) an
agreement between a state actor and a
private party [or state actor]; (2) to act in
concert to inflict an unconstitutional injury;
and (3) an overt act done in furtherance of
that goal causing damages.” Ciambriello,
292 F.3d 307, 324-325 (2d Cir. 2002.)
Moreover, vague and conclusory allegations
that defendants have engaged in a
conspiracy
to
violate
plaintiff’s
constitutional rights must be dismissed. See
Id at 325 (dismissing conspiracy allegations
where
they
were
found
“strictly
conclusory”); see also Walker v. Jastremski,

IV. LEAVE TO REPLEAD
The Second Circuit has emphasized that
A pro se complaint is to be read
liberally. Certainly the court should
not dismiss without granting leave
to amend at least once when a
liberal reading of the complaint
gives any indication that a valid
claim might be stated.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir. 2000) (quotations and citations
omitted). Under Rule 15(a) of the Federal
Rules of Civil Procedure, the “court should
freely give leave [to amend] when justice so
requires.” Fed. R. Civ. P. 15(a). However,
9

leave to re-plead can be denied where it is
clear that no amendments can cure the
pleading deficiencies and any attempt to
replead would be futile. See Cuoco, 222
F.3d at 112 (“The problem with [plaintiff’s]
cause[] of action is substantive; better
pleading will not cure it. Repleading would
thus be futile. Such a futile request to
replead should be denied.”); see also
Hayden v. Cnty. of Nassau, 180 F.3d 42, 53
(2d Cir. 1999) (holding that if a plaintiff
cannot demonstrate he is able to amend his
complaint “in a manner which would
survive dismissal, opportunity to replead is
rightfully denied”).

any claim against Habberstad, regardless of
the forum, without first seeking judicial
assistance or, in the alternative, order
plaintiff to pay monetary sanctions of up to
$10,000.00. (Habberstad’s Br. at 10.) For
the reasons that follow, Habberstad’s motion
for sanctions is denied.
As an initial matter, the Court notes that
Habberstad has not satisfied the procedural
requirements for filing a sanctions motion.
A request for sanctions must be made by
separate motion, in accordance with Rule
11(c)(2) of the Federal Rules of Civil
Procedure. In any event, the Court denies
Habberstad’s motion. In considering a
motion for sanctions under Rule 11, this
Court applies an “objective standard of
reasonableness.” See MacDraw, Inc. v. CIT
Grp. Equip. Fin., Inc., 73 F.3d 1253, 1257
(2d Cir. 1996). Moreover, “Rule 11 is
violated only when it is patently clear that a
claim has absolutely no chance of success.”
Oliveri v. Thompson, 803 F.2d 1265, 1275
(2d Cir. 1986) (internal quotation marks
omitted). Additionally, “when divining the
point at which an argument turns from
merely losing to losing and sanctionable, . . .
courts [must] resolve all doubts in favor of
the signer” of the pleading. Rodick v. City
of Schenetady, 1 F.3d 1341, 1350 (2d Cir.
1993) (emphasis in original) (internal
quotation marks omitted).

Here, the Court has determined that the
Suffolk County District Court is immune
from suit. Moreover, plaintiff’s claims
against Suffolk County appear to be
attempts to plead claims against the State
which, as discussed supra, are barred and, in
any event, are frivolous.
In addition,
plaintiff’s claims against Habberstad are
barred by the doctrines of res judicata and
collateral estoppel. Accordingly, granting
plaintiff leave to re-plead would be futile.
Thus, leave to re-plead is unwarranted.
V. HABBERSTAD’S REQUEST FOR
SANCTIONS
Habberstad seek to impose sanctions,
pursuant to Rule 11 of the Federal Rules of
Civil Procedure (“Rule 11”) against the
plaintiff. Specifically, Habberstad argues
that “Plaintiff was cautioned by Judge
Thompson that ‘if he commences any
further legal action on this claim against
Defendant [Defendant Habberstad], the
court may conclude that such action is
frivolous and with the intention to harass or
injure the Defendant [Habberstad].”
(Habberstad’s Br. at 10 (citing Habberstad
Declaration at Ex. E.).) Habberstad asks
that this Court preclude plaintiff from filing

Similarly, the issuance of a filing
injunction is appropriate when a plaintiff
abuses court process to harass and annoy
others with “‘meritless, frivolous, vexatious
or repetitive . . . proceedings.’” Davey v.
Dolan, 453 F. Supp. 2d 749, 756 (S.D.N.Y.
2006) (quoting In re Hartford Textile Corp.,
659 F.2d 299, 305 (2d Cir. 1991)). To
determine whether a filing injunction is
warranted, a district court should consider:

10

Declaration at Ex. E.) This Court agrees.
Moreover, even though Judge Thompson
warned Commins about filing future
lawsuits regarding these same claims, it is
entirely possible that Commins did not
understand that the res judicata effect of the
state court proceedings also applies to
federal court, even if he is attempting to
appeal the state court judgment.
See
Maduakolam v. Columbia Univ., 866 F.2d
53, 56 (2d Cir. 1989) (noting, in the context
of a motion for Rule 11 sanctions, that “the
court
may
consider
the
special
circumstances of litigants who are untutored
in the law.”). Thus, since this is his first
attempt to litigate his claims in federal court,
this Court finds in its discretion that no
sanction
is
warranted.
However,
“[d]uplicative litigation is, to be sure, clearly
impermissible, and plaintiff must understand
that further filing of overlapping pleadings
may require sanctions.” Soling v. N.Y. State,
804 F. Supp. 532, 539 (S.D.N.Y. 1992). The
Court thus, in its discretion, declines to
impose a filing injunction on plaintiff at this
time, or any other sanction under Rule 11,
but issues plaintiff one final warning that
any future filings of this nature related to
these claims will result in such a ban.
Accordingly, Habberstad’s request for
sanctions under Rule 11 is denied.

(1) the litigant’s history of litigation
and in particular whether it entailed
vexations, harassing or duplicative
lawsuits; (2) the litigant’s motive in
pursuing the litigation, e.g., does the
litigant have an objective good faith
expectation of prevailing?; (3)
whether the litigant is represented by
counsel; (4) whether the litigant has
caused needless expense to other
parties or has posed an unnecessary
burden on the courts and their
personnel; and (5) whether other
sanctions would be adequate to
protect the courts and other parties.
Id.
Here, Commins has a history of
litigation involving duplicative lawsuits.
This is his third attempt to raise claims in
some court relating to his car repair.
Although plaintiff is pro se, which weighs
against imposition of a filing injunction, the
Court notes that Judge Thompson previously
warned plaintiff in denying defendants’
motion for sanctions in Action #2: “The
Plaintiff is cautioned that if he commences
any further legal action on this claim against
the Defendant, the Court may conclude that
such action is frivolous and with the
intention to harass or injure the Defendant,
and the appropriate sanctions of up to
$10,000 can be imposed against the Plaintiff
for such action.” (Habberstad Declaration at
Ex. E.)

VI. CONCLUSION
For the foregoing reasons, the Court
grants the defendants’ motions to dismiss
the amended complaint in its entirety.9 In

Although many of these factors favor the
ban (or a monetary sanction), the Court
concludes in its discretion that, balancing all
of the factors, the requested sanctions are
unwarranted. As noted by Judge Thompson
in her Decision and Order, “Although
ignorance of the law is no excuse, the
concept of res judicata and collateral
estoppel i[s] often challenging for many
attorneys nonetheless pro se litigants with no
legal education or skill.”
(Habberstad

9

Plaintiff has also filed a motion to strike. In
addition, plaintiff has filed a “Memorandum Of Law
In Support Of Order To Asset Freeze Order For
Restraining Order Injunction And Temporary,” a
“Memorandum Of Law In Support of Order To
Seizure order of records Prelimina Restrain In Order
Injunction And Temporary,” and a “Memorandum Of
Law In Support Of Order For Disbarred Order For
Preliminar Restrain In Order Injunction And
Temporary.” As the Court grants defendants’ motions
to dismiss the amended complaint, plaintiff’s motions

11

addition, Habberstad’s motion for sanctions
is denied. The Clerk of the Court shall enter
judgment accordingly and close the case.
SO ORDERED.

________________________
Judge Joseph F. Bianco
United States District Judge

Date:

March 20, 2012
Central Islip, NY
*

*

*

Plaintiff is pro se, 705 Linton Boulevard
Apt. B203, Delray Beach, FL 33444.
Defendant Habberstad BMW is represented
by Saul D. Zabell, Zabell & Associates,
P.C., 4875 Sunrise Highway, Suite 300,
Bohemia, NY 11716. Defendants Suffolk
County and the Suffolk County Attorney’s
Office are represented by Brian C. Mitchell,
Suffolk County Deptartment of Law –
County Attorney, 100 Veterans Memorial
Highway, P.O. Box 6100, Hauppauge, NY
11788. Defendant Suffolk County Civil
Courts 10th JD is represented by Lori L.
Pack, Office of the New York State
Attorney General, 300 Motor Parkway,
Suite 205, Hauppauge, NY 11788.

are moot and, in any event, without merit. Moreover,
plaintiff has also filed a motion for recusal. The
Court finds that there is no basis for recusal and
denies plaintiff’s motion.

12