Leskinen v. Halsey et al

Filing 182

MEMORANDUM AND OPINION. Having conducted a de novo review of Magistrate Judge Boyle's Report and Recommendation ("R&R"), the Court adopts the R&R in its entirety. Specifically, the Court grants defendants' motions to dismiss pursu ant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, as this Court lacks subject matter jurisdiction due to the probate exception. Plaintiff's complaint against defendants is dismissed without leave to replead. The Clerk of the Court shall close the case and enter judgment accordingly. SO ORDERED. Ordered by Judge Joseph F. Bianco on 3/5/2013.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 12-cv-00623 (JFB)(ETB)
_____________________

LAURA LESKINEN,
Plaintiff,
VERSUS

CAROLYN A. HALSEY, ET AL.,
Defendants.
___________________
ORDER ADOPTING REPORT AND RECOMMENDATION
March 5, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Laura Leskinen
(“plaintiff” or “Leskinen”) filed her
complaint against defendants Carolyn
Halsey, Barbara Allan, Douglas Whitman,
Robert Whitman, Jr., Robert Whitman, Sr.,
and Jennifer McHenry, all proceeding pro se
(the “pro se defendants”); defendants Robert
Kelly, Jr. and Kelly & Hulme, P.C.,
represented by counsel (the “Kelly
defendants”); and defendants Joe Nemeth,
Pinks, Arbeit & Nemeth, Mike Carroll,
Landstar Title Company, Ken Warner, and
Marketplace Realty, represented by counsel
(the “Marketplace defendants”).1 Defendants
subsequently filed seven separate motions to
dismiss plaintiff’s complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Procedure.2 Defendants argue
that dismissal is warranted on two grounds:
(1) this Court lacks subject matter
jurisdiction due to the “probate exception”
to federal jurisdiction; and (2) plaintiff has
failed to state a claim upon which relief can
be granted.
Before the Court is a Report and
Recommendation (“R&R”) from Magistrate
Judge Boyle, as well as plaintiff’s objections
to the R&R and both the Kelly and
Marketplace defendants’ respective reply
papers. The R&R recommends that the
Court grant defendants’ motions to dismiss
because the Court lacks subject matter
jurisdiction due to the “probate exception”

2

1

The Court refers to the pro se defendants, Kelly
defendants, and Marketplace defendants collectively
as, “the defendants.”

Defendant Jennifer McHenry did not join in the
pending motions to dismiss. See Report and
Recommendation, 12-CV-623 (JFB)(ETB), at 16 n.7
(E.D.N.Y. Jan. 28, 2013), ECF No. 178.

to federal jurisdiction.3 The R&R further
recommends that the Court dismiss
plaintiff’s complaint without leave to amend
on the grounds that no amendment can cure
the fundamental defect in subject matter
jurisdiction.

within 14 days. Plaintiff filed her objections
on February 12, 2013; the Kelly defendants
submitted their reply on February 28, 2013,
and the Marketplace defendants submitted
their reply on March 1, 2013. The Court has
fully considered the parties’ submissions.

For the reasons that follow, having
reviewed the entire R&R de novo, the Court
adopts Judge Boyle’s thorough and wellreasoned R&R in its entirety.

II. STANDARD OF REVIEW
A district judge may accept, reject, or
modify, in whole or in part, the findings and
recommendations of the Magistrate Judge.
See DeLuca v. Lord, 858 F. Supp. 1330,
1345 (S.D.N.Y. 1994); Walker v. Hood, 679
F. Supp. 372, 374 (S.D.N.Y. 1988). As to
those portions of a report to which no
“specific written objection” is made, the
Court may accept the findings contained
therein, as long as the factual and legal bases
supporting the findings are not clearly
erroneous. Santana v. United States, 476 F.
Supp. 2d 300, 302 (S.D.N.Y. 2007); Greene
v. WCI Holdings Corp., 956 F. Supp. 509,
513 (S.D.N.Y. 1997). When “a party
submits a timely objection to a report and
recommendation, the district judge will
review the parts of the report and
recommendation to which the party objected
under a de novo standard of review.” Jeffries
v. Verizon, 10-CV-2686 (JFB)(AKT), 2012
WL 4344188, at *1 (E.D.N.Y. Sept. 21,
2012); see also 28 U.S.C. § 636(b)(1)(C)
(“A judge of the court shall make a de novo
determination of those portions of the report
or specified proposed findings or
recommendations to which objection is
made.”); Fed. R. Civ. P. 72(b)(3) (“The
district judge must determine de novo any
part of the magistrate judge’s disposition
that has been properly objected to. The
district judge may accept, reject, or modify
the recommended disposition; receive
further evidence; or return the matter to the
magistrate judge with instructions.”).

I. PROCEDURAL HISTORY
Plaintiff filed her original complaint on
December 17, 2010 in the Eastern District of
California, and filed amended complaints on
May 6, 2011 and May 31, 2011. On January
23, 2012, plaintiff’s action was transferred
to this Court by order of District Judge
Morrison C. England. Following the
transfer, defendants submitted seven
different motions to dismiss plaintiff’s
second amended complaint in June and July
of 2012. Plaintiff filed her opposition
motion on August 20, 2012. Several of the
defendants filed replies to plaintiff’s
opposition on September 14 and September
17, 2012. On October 19, 2012 and
November 7, 2012, the Court referred
defendants’ motions to Magistrate Judge
Thomas E. Boyle for a Report and
Recommendation.
Magistrate Judge Boyle issued the
instant R&R on January 28, 2013, and noted
that any objections to the R&R were due
3

Magistrate Judge Boyle similarly concluded that
dismissal against defendant Jennifer McHenry (who
did not join in any of the pending motions to dismiss,
see supra) is proper because the Court lacks subject
matter jurisdiction over plaintiff’s claims against her.
See Report and Recommendation at 16 n.7 (citing
Durant, et. al. v. Dupont, 565 F.3d 56, 62 (2d Cir.
2009) (“If subject matter jurisdiction is lacking and
no party has called the matter to the court’s attention,
the court has the duty to dismiss the action sua
sponte.”)).

2

California
law
4
franchisees.

III. PLAINTIFF’S OBJECTIONS
Plaintiff objects to the R&R with respect
to its recommendation that the Court grant
defendants’ motions to dismiss pursuant to
Rule 12(b)(1) of the Federal Rules of Civil
Procedure because plaintiff’s claims are
barred by the probate exception to federal
jurisdiction. Specifically, plaintiff makes the
following objections: (1) the proceedings in
the Eastern District of New York were
“presumptively
prejudicial,”
(Pl.’s
Objections at 2; see also id. at 4); (2)
Magistrate
Judge
Boyle
made
a
“deliberately false judicial presentation of
the facts in the case,” (id. at 2, 5); (3)
Magistrate
Judge
Boyle
admitted
inadmissible evidence, (id. at 7); and (4)
Magistrate Judge Boyle became a witness in
this case when he participated in a live
hearing with defendants Douglas Whitman
and Carolyn Halsey, and therefore, “is not
[in] a judicial position to dismiss the case,”
(id. at 3), and further, has purposefully
misrepresented the laws of probate and the
facts and law as to co-conspirators, (id.)
Plaintiff also asserts that Magistrate Judge
Boyle improperly “referr[ed] . . . this action
to Judge Bianco,” whom plaintiff claims to
have disqualified “[p]ursuant to Judicial
Canon 3.” (Id.)

concerning

business

To begin with, plaintiff – at least for
purposes of this dispute – is neither a parent
corporation nor a business franchisee, and
thus California law concerning such entities
is not relevant here. To the extent plaintiff’s
argument serves as a challenge to this
action’s transfer to the Eastern District of
New York, plaintiff offers no argument as to
why transfer here was improper. Moreover,
the Court finds no such reason on review of
the record. The underlying dispute concerns
real property located in the State of New
York that was formerly owned by plaintiff’s
deceased grandmother. See Order, 10-cv3363 (MCE)(KJN), Leskinen v. Halsey, et
al., at 3 (E.D. Cal. Jan. 23, 2012), ECF No.
116. Thirteen of the fourteen named
defendants reside in New York. Id. Transfer
to the Eastern District of New York was
therefore proper considering both the
interests of justice and the parties’
convenience.
Additionally, plaintiff’s evidentiary
challenges to Exhibits J and L are baseless.
These documents are public records which
plaintiff could have independently accessed
at any point in time, thereby removing her
concerns as to the alleged fraudulent nature
of such documents. (See Pl.’s Objections at
7-8.)5 Moreover, the exhibits are highly
relevant to the underlying issues of the

The Court has reviewed de novo the
R&R in its entirety, and it adopts the R&R
in all respects.
A. Propriety of the Proceedings

4

In particular, plaintiff states that “California’s
Business Code is repugnant to the constitution, as
California has set up a new caste system: the
individual, the corporation, with the business
franchisee at the top of this repugnant-to-theconstitution racism.” (Pl.’s Objections at 4.)
5
Specifically, Exhibit J consists of the “Letters of
Administration of a Small Estate” by the State of
Maryland. (See Defs.’ Notice of Mot. to Dismiss
Exhibits J, L (“Exhibits J & L”).) Exhibit L is a
decision issued by the Surrogate Court of Suffolk
County addressing an ancillary probate proceeding
for plaintiff’s grandmother’s will. (Id.)

Several of plaintiff’s objections to the
R&R may best be described as challenges to
the propriety of the proceedings before this
Court, and not specifically to Magistrate
Judge Boyle’s rulings in the R&R. For
instance, plaintiff seeks to disqualify the
undersigned and Magistrate Judge Boyle, to
exclude documentary evidence relevant to
plaintiff’s claims, and to challenge
3

evidence plaintiff offers is: (1) Magistrate
Judge Boyle referred to the second amended
complaint simply as the complaint, which
suggests he never reviewed plaintiff’s
second amended complaint or subsequent
filings, (Pl.’s Objections at 5-6); (2)
Magistrate Judge Boyle performed a “rubber
stamp revival of all ex Magistrate Judge
Kelly’s attorney Morante’s debunked
myths,” and a “regurgitation of false
statements made by defendants with regard
to the probate exception to jurisdiction,” (id.
at 6); and (3) Magistrate Judge Boyle “is an
active participant in this case as he now is a
witness and can attest to the May 2012
telephone conference admission by coconspirator defendant Douglas Whitman,”
(id. at 8.)

dispute, as these exhibits concern the
probate of the contested estate and its
implications for the sale of the subject
property. Thus, plaintiff’s challenges of
inadmissibility on the grounds that the
documents have been “doctored” and
“generated under fraudulent conditions,”
with the insinuation that such documents are
not relevant to this dispute, must fail. (See
id. at 7-8.)
Regarding plaintiff’s challenge to the
undersigned presiding over the case, it is
well-established that the district judge has
discretion
to
determine
whether
disqualification is warranted in a given
matter. See Sec. & Exch. Comm’n v. Drexel
Burnham Lambert Inc., 861 F.2d 1307, 1312
(2d Cir. 1988). This is so because “[t]he
judge presiding over a case is in the best
position to appreciate the implications of
those matters alleged in a recusal motion."
Id. When determining whether recusal is
appropriate, the trial judge must balance
“the policy of promoting public confidence
in the judiciary against the possibility that
those questioning his impartiality might be
seeking to avoid the adverse consequences
of his presiding over their case.” Id. Stated
differently, “[l]itigants are entitled to an
unbiased judge; not to a judge of their
choosing.” Id. Where a litigant produces no
evidence showing to the contrary, a judge’s
impartiality will be presumed. See Wolfson
v. Palmieri, 396 F.2d 121, 126 (2d Cir.
1968). Here, the record is clear that the
undersigned never recused himself from this
action, and plaintiff has no authority to
declare the undersigned as recused.
Furthermore, there is absolutely no basis for
recusal in this case. The Court accordingly
rejects plaintiff’s frivolous allegations on
this issue, and any motion to recuse or
disqualify the undersigned is denied.

Plaintiff’s first two challenges are
nothing more than conclusory allegations
that are insufficient for purposes of
establishing
that
disqualification
of
Magistrate Judge Boyle is warranted or that
the proceedings here were otherwise biased,
unfair, or tainted. See generally Walker v.
New York, 345 F. Supp. 2d 283, 290-91
(E.D.N.Y. 2004) (“[P]laintiff cannot meet
his burden of showing the lack of a full and
fair opportunity to litigate a prior action
through a bare conclusory allegation.
Rather, the plaintiff must point[ ] to specific
instances from which it can be concluded
that the proceeding . . . or its decision, was
fundamentally unfair. Plaintiff does not
allege any specific incidents indicating that
his [prior] proceedings were unfair. . . . This
sort of bare conclusory allegation is clearly
insufficient to meet Plaintiff’s burden . . . .”
(first alteration in original) (citations and
internal quotation marks omitted)).
As to plaintiff’s third objection, the fact
that Magistrate Judge Boyle participated in a
telephone conference does not provide
grounds for his disqualification. Judges
often participate in telephone conferences in

Plaintiff’s challenge as to Magistrate
Judge Boyle similarly fails. The only
4

there properly had jurisdiction. Marshall,
547 U.S. at 311-12. Plaintiff similarly seeks
to establish that her claims concern matters
outside of those confined to the state probate
courts, thus supporting this Court’s
jurisdiction over the same. (See Pl.’s
Objections at 12 (noting that probate
exception generally “reserves to state
probate courts the probate or annulment of a
will and the administration of a decedent’s
estate, and precludes federal courts from
endeavoring to dispose of property that is in
the custody of a state probate court,” but that
the exception in that case did not deprive the
court “of jurisdiction over widow’s claim
that her stepson tortiously interfered with
her expectancy of inheritance or gift from
her deceased husband”).)

cases. At times, the parties might appear
before the judge for an in-person hearing or
an oral argument. This interaction with the
parties does not, in and of itself, provide
grounds for disqualification. Moreover,
plaintiff points to no facts or evidence
suggesting that the communications here
show any possible bias or impropriety, nor
does the record reflect any such grounds for
disqualification.
B. Challenges to the R&R
Turning to plaintiff’s specific objections
to the R&R, the Court has carefully
reviewed plaintiff’s arguments and agrees
with Magistrate Judge Boyle that this Court
lacks subject matter jurisdiction to hear
plaintiff’s action on account of the probate
exception. The Supreme Court’s decision in
Marshall v. Marshall, clarifying the scope of
this exception, and upon which plaintiff
heavily relies, does not alter the result. 547
U.S. 293 (2006).

The Court rejects plaintiff’s arguments.
All of plaintiff’s allegations target the
allegedly
improper
arrangement
by
defendants of the sale of plaintiff’s
grandmother’s property, in violation of both
the will and proper probate procedures.
Thus, plaintiff’s allegations squarely
implicate both the terms of the will and the
probate proceedings. (See, e.g., Second Am.
Compl. ¶ 6 (“The Enterprise, which should
have been individuals and businesses
involved in a legitimate ancillary probate of
and sale of DECEDENT’S property, and
legal and forthright distributions based on
Decedent’s 1996 will, was illegally
perverted for a common purpose so as to
deprive PLAINTIFF of PROPERTY and
money in the interstate real estate
transaction.”); id. ¶¶ 45-46 (describing
conversations with certain defendants
regarding whether or not decedent’s will had
been probated, and which plaintiff asserts
represent part of a fraudulent scheme to try
and deprive her of property devised to her
under the terms of the will).) As Magistrate
Judge Boyle aptly noted, for this Court to
best address plaintiff’s allegations, it would
have “to determine whether and to what

Marshall states that “the probate
exception reserves to state probate courts the
probate or annulment of a will and the
administration of a decedent’s estate; it also
precludes federal courts from endeavoring to
dispose of property that is in the custody of
a state probate court.” Id. at 311-12; see also
Lefkowitz v. Bank of N.Y., 528 F.3d 102, 105
(2d Cir. 2007) (noting that state probate
courts are the appropriate court in which to
probate a will or administer a decedent’s
estate, but that the probate exception does
not bar a federal court from adjudicating
matters outside those otherwise confined to
the state probate courts). In Marshall, the
Supreme Court explained that, because
plaintiff’s claim of alleged tortious
interference with a gift or inheritance from
the decedent did not concern the
administration of an estate or the probate or
annulment of a will, or seek a res in the
custody of a state court, the federal court
5

C. Leave to Amend

extent the disposition of the Property is
governed by [plaintiff’s grandmother’s]
will,” and “in the event that plaintiff were to
succeed in establishing that the Property is
part of [the decedent’s] estate and should be
distributed in accordance with [the
decedent’s] will, the Court would be called
upon to determine plaintiff’s percentage of
ownership in the Property,” requiring the
Court to “become involved in the
administration of [the decedent’s] will and
estate.” Report and Recommendation at 1516.

The R&R correctly explains that, while a
court should read a pro se complaint
liberally and grant leave to amend where a
valid claim might properly be stated, a court
may deny such leave where it is clear that a
plaintiff will be unable to provide any facts
in support of her amended claims. See
Report and Recommendation at 17 (citing
Thompson v. Carter, 284 F.3d 411, 419 (2d
Cir. 2002); Pangburn v. Culbertson, 200
F.3d 65, 71 (2d Cir. 1999); Aquino v.
Prudential Life & Cas. Ins. Co., 419 F.
Supp. 2d 259, 278 (E.D.N.Y. 2005)). The
Court agrees with Magistrate Judge Boyle
that, even if leave to amend were granted,
plaintiff will not be able to provide any facts
that do not similarly trigger the probate
exception. All of plaintiff’s allegations
throughout her complaints concern the
allegedly wrongful disposition of real
property, which plaintiff argues was
governed by her grandmother’s will and by
which it should have been distributed
amongst the inheritors under the will.
Because any amendment will still present
issues concerning the administration of
plaintiff’s grandmother’s estate and the
terms of her grandmother’s will, this Court
agrees that leave to amend should not be
granted. Accordingly, leave to amend is
denied.

Because plaintiff’s claims directly target
the administration of her grandmother’s
estate, including the allegedly improper
disposition of real property, the probate
exception applies and precludes this Court
from having jurisdiction over the dispute.
See Lefkowitz, 528 F.3d at 107 (finding
probate exception applicable where plaintiff
sought property that remained under the
probate court’s control); Ex’r of Estate of
Kates v. N. Trust Corp., 04-CV5153(DRH)(WDW), 2005 WL 3088695, at
*2 (E.D.N.Y. Nov. 17, 2005) (finding no
subject matter jurisdiction because dispute
“turn[ed] singularly” on the issue of whether
a trust to which the decedent’s estate was a
beneficiary had been mismanaged, and this
was an issue that was “either directly or
indirectly” before the probate court). As this
Court lacks subject matter jurisdiction, it
does not address defendants’ other
arguments in support of dismissal. See Avni
v. Pilgrim Psychiatric Ctr., 05-CV-5346 JS
ETB, 2006 WL 2505241, at *6 (E.D.N.Y.
Aug. 28, 2006) (finding consideration of
defendants’
remaining
arguments
unnecessary where court already had
concluded that no subject matter jurisdiction
existed over plaintiff’s claims); see also
Nasser v. Andersen Worldwide Societe Coop, 02 Civ. 6832(DC), 2003 WL 22179008,
at *2 (S.D.N.Y. Sept. 23, 2003).

IV. CONCLUSION
Having conducted a de novo review of
the R&R, the Court adopts the R&R in its
entirety. Specifically, the Court grants
defendants’ motions to dismiss pursuant to
Rule 12(b)(1) of the Federal Rules of Civil
Procedure, as this Court lacks subject matter
jurisdiction due to the probate exception.
Plaintiff’s complaint against defendants is

6

dismissed without leave to replead.6 The
Clerk of the Court shall close the case and
enter judgment accordingly.

Nemeth, Ken Warner, and Landstar Title
Company, Inc. are represented by Cristina
Roseann Yannucci, Lewis Brisbois Bisgaard
& Smith LLP, 77 Water Street, Suite 2100,
New York, NY 10005, David E. Long,
Lewis, Brisbois, Bisggard & Smith, 221 N.
Figueroa Street, #1200, Los Angeles, CA
90012, and Anthony Proscia, Lewis Brisbois
Bisgaard & Smith, LLP, 77 Water Street,
Suite 2100, New York, NY 10005.
Defendants Robert Kelly, Jr. and Kelly &
Hulme, PC are represented by Robert
William Lucas, Murphy Pearson Bradley &
Feeney, 1375 Exposition Boulevard, Suite
250, Sacramento, CA 95815, Heather Arlene
Morante and Matthew R. Jaeger, L’Abbate
Balkan Colavita & Contini LLP, 1001
Franklin Avenue, Garden City, NY 11530,
and Marian C. Rice, L’Abbate, Balkan,
Colavita & Contini LLP, 1050 Franklin
Avenue, Garden City, NY 11530.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: March 5, 2013
Central Islip, NY
***
The plaintiff proceeds pro se: P.O. Box
6208, Folsom, CA 95763. Defendant
Carolyn A. Halsey proceeds pro se: 53 N.
Paquatuck Avenue, East Moriches, NY
11940. Defendant Barbara Allan proceeds
pro se: 111 Seville Boulevard, Sayville, NY
11782. Defendant Robert Whitman, Sr.
proceeds pro se: 2904 Devonoak Boulevard,
Land O’Lakes, FL 34638. Defendant
Douglas Whitman proceeds pro se: 45
Trudy Drive, Sykesville, MD 21784.
Defendant Robert Whitman, Jr. proceeds
pro se: 505 2d Avenue SE, Lutz, FL 33549.
Defendant Jennifer McHenry proceeds pro
se: 328 N. Titmus Drive, Mastic, NY 11950.
Defendants Marketplace Realty, Mike
Carroll, Joe Nemeth, Pinks, Arbeit &
6

The Court agrees with Magistrate Judge Boyle’s
recommendation that the complaint should be
dismissed sua sponte against defendant Jennifer
McHenry, despite her not having joined in the
motions to dismiss, as this Court also lacks subject
matter jurisdiction over plaintiff’s claims against her
for the same reasons that it lacks such jurisdiction
over the main defendants. See Report and
Recommendation at 16 n.7 (citing Durant, et al., 565
F.3d at 62 (“If subject matter jurisdiction is lacking
and no party has called the matter to the court’s
attention, the court has the duty to dismiss the action
sua sponte.”)).

7