Maitland et al v. Lunn et al

Filing 62

MEMORANDUM & ORDER denying 59 Motion for Reconsideration; Plaintiffs' motion for reconsideration (Docket Entry 59) is DENIED, but the Court GRANTS Plaintiffs leave to file an amended complaint to satisfy the $75,000 amount-in-controvers y requirement in accordance with this Memorandum & Order. Plaintiffs' remaining claims are as follows: (1) breach of contract against Nassau County and the Town of Hempstead and (2) unjust enrichment against Nassau County. Any Amended Complaint shall be filed within thirty (30) days from the date of this Order. The Court also GRANTS Plaintiffs' leave to renew their motion to compel unredacted documents. If an amended complaint is filed, Plaintiffs may coordinate discovery matters wi th Judge Tomlinson's Chambers. Given Plaintiffs' pro se status, the Court certifies that any appeal of this Order would not be taken in good faith, and thus in forma pauperis status is DENIED for the purposes of any appeal. The Clerk of th e Court is directed to amend the caption to substitute Nassau County as a defendant in place of Nassau County Social Services. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Plaintiffs Edson Maitland and Edson Maitland, Jr. So Ordered by Judge Joanna Seybert on 3/21/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
EDSON MAITLAND and EDSON MAITLAND, JR.,
Plaintiffs,
-against–
FAWN-NITA LUNN, TOWN OF HEMPSTEAD
and NASSAU COUNTY SOCIAL SERVICES,

MEMORANDUM & ORDER
14-CV-5938(JS)(AKT)

Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
Edson Maitland, pro se
Edson Maitland, Jr., pro se
33 Ramblewood Drive
Palm Coast, Florida 32164
For Defendants:
Fawn-Nita Lunn
Town of Hempstead

No appearance.
Daniel James Evers, Esq.
Joseph E. Macy, Esq.
Donna A. Napolitano, Esq.
Berkman, Henoch, Peterson,
Peddy & Fenchel, P.C.
100 Garden City Plaza
Garden City, New York 11530
Federico A. Amorini, Esq.
Law Office of F.A. Amorini
16 Dolphin Drive
Farmingdale, New York 11735

Nassau County

Pablo A. Fernandez, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, New York 11501

SEYBERT, District Judge:
This matter arises out of a lease agreement between pro
se Plaintiffs and their tenant, Fawn-Nita Lunn, in which the Town

of Hempstead (the “Town”) and the Nassau County Department of
Social Services1 (the “County”) contributed housing assistance
payments.

(Compl., Docket Entry 1, ¶¶ 14, 18.)

Plaintiffs filed

this lawsuit seeking compensation for unpaid rent and property
damage.

(Compl. ¶¶ 59, 64–65.)

Complaint

for

lack

of

The Town moved to dismiss the

subject

matter

jurisdiction,

service of process, and failure to state a claim.
Docket

Entry

24,

at

7–17.)

While

that

motion

untimely

(Town’s Br.,
was

pending,

Plaintiffs asked the Court (1) to impose sanctions for alleged
discovery

violations

unredacted documents.

and

(2) to

compel

the

production

of

(Mot. for Sanctions, Docket Entry 52; Mot.

to Compel, Docket Entry 53.)
By Memorandum and Order (“M&O”) dated March 4, 2016, the
Court dismissed this case for lack of subject matter jurisdiction
because

Plaintiffs

failed

controversy requirement.

to

satisfy

the

$75,000

amount-in-

(March 2016 M&O, Docket Entry 58, at 7-

As a department of a municipality, the Nassau County Department
of Social Services s/h/a Nassau County Social Services is not a
suable entity. McCluskey v. Comm’r of Nassau Cty. Dep’t of
Social Servs., No. 12-CV-3852, 2013 WL 4780954, at *10 n.3
(E.D.N.Y. Sept. 5, 2013); see also Davis v. Lynbrook Police
Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002) (“Under New York
law, departments that are merely administrative arms of a
municipality do not have a legal identity separate and apart
from the municipality and, therefore, cannot sue or be sued.”).
Instead, the proper defendant is Nassau County. In light of
Plaintiffs’ pro se status, the Court construes the Complaint as
such, and the Clerk of the Court is directed to amend the
caption as written above--that is, to substitute Nassau County
as a defendant in place of Nassau County Social Services.
1

2

8.)

The Court also dismissed Plaintiffs’ remaining motions as

moot.

(Id. at 11.)
Plaintiffs now move for reconsideration.

Docket Entry 59.)

(Recons. Mot.,

For the reasons that follow, their motion is

DENIED, but the Court grants Plaintiffs leave to file an amended
complaint to plead facts that satisfy the minimum jurisdictional
amount.
BACKGROUND
The underlying facts are outlined in the Court’s prior
opinion.

(See March 2016 M&O at 2–5.)

The salient details, with

additional history, are provided below.2
I.

The Facts
Pro se Plaintiffs own property located in Nassau County,

New York (the “Property”).
Agmt.3)

(Compl. ¶ 16; see generally Lease

To assist Lunn in leasing the Property, the Town entered

The Court accepts all uncontroverted factual allegations in the
Complaint as true. See 5B Charles Alan Wright et al., Federal
Practice & Procedure § 1350 (3d ed. 2004) (“[I]t has been well
established by the case law that the pleading will be read . . .
with all uncontroverted factual allegations . . . accepted as
true. However, once a factual attack is made on the federal
court’s subject matter jurisdiction, the district judge is not
obliged to accept the plaintiff’s allegations as true and may
examine the evidence to the contrary and reach his or her own
conclusion on the matter.”).
2

When citing to any exhibits, the Court will use the page
numbers assigned by the Case Management/Electronic Case Files
(CM/ECF) system. References are as follows: the Lease Agreement
“Lease Agmt.” (Town’s Br. Ex. B, Docket Entry 24-2, at 18–20);
the Housing Assistance Payments contract “HAP Contract” (Town’s
3

3

into a Housing Assistance Payment contract (the “HAP Contract”)
with Plaintiffs.

(HAP Contract at 8–17.)

In other words, the

Town, as the Public Housing Agency (“PHA”), would contribute
housing assistance payments.

(HAP Contract at 8, ¶ 7.)

During

the relevant time periods, the Town’s contribution was $1,874, and
either Lunn or the County contributed the remaining $558.

(Compl.

¶¶ 51, 53, 72–73; HAP Contract at 14, ¶ 5(a) (“The family is
responsible for paying the owner any portion of the rent to owner
that is not covered by the PHA housing assistance payment.”).)

If

any property damage occurred, Lunn was responsible:
“Tenant must pay for damages suffered and money spent by
Landlord relating to any claim arising from any act or neglect
of Tenant. Tenant is responsible for all acts of Tenant’s
family, employees, guests or invitees.”4 (Lease Agmt. at 19
¶ 9.)
“The PHA has no liability or responsibility to the owner or
other persons for the family’s behavior or the family’s
conduct in tenancy.” (HAP Contract at 10 ¶ 2(e).)
“The PHA is only responsible for making housing assistance
payments to the owner . . . The PHA shall not pay any other
Br. Ex. A, Docket Entry 24-2, at 8–17); the Town building
inspector’s letter dated January 28, 2014 “Inspector’s Jan. 28,
2014 Ltr.” (Town’s Br. Ex. C, Docket Entry 24-2, at 21–30); the
Town building inspector’s letter dated November 24, 2014
“Inspector’s Nov. 24, 2014 Ltr.” (Town’s Br. Ex. G, Docket Entry
24-2, at 40–41); the Town’s termination letter dated April 1,
2014 “Town’s Termination Ltr.” (Town’s Br. Ex. F, Docket Entry
24-2, at 35–36); and the hearing officer’s July 25, 2014
decision “Appeal Decision” (Town’s Br. Ex. F, Docket Entry 24-2,
at 37–39).
The HAP Contract defines “family” as any “persons who may
reside in the unit with assistance under the program.” (HAP
Contract at 5 ¶ 17.)
4

4

claim by the owner against the family.” (Id. at 11 ¶ 7(e)(1)–
(2).)
“If the security deposit is not sufficient to cover amounts
the tenant owes under the lease, the owner may collect the
balance from the tenant.” (Id. at 16 ¶ 12(d).)
The Town terminated the HAP Contract--and thus the Lease
Agreement--effective May 1, 2014 because Lunn did not submit
certain

documentation.

(Town’s

Termination

Ltr.

at

36;

HAP

Contract at 16 ¶ 9 (“If the HAP contract terminates for any reason,
the lease terminates automatically.”).)
unsuccessful.

Lunn appealed but was

(Appeal Decision at 39 (“Based upon the evidence

presented, it is the Decision of this Hearing Officer that Ms.
Fawn-Nita Lunns’ [sic] participation in the Section 8 Program be
terminated effective July 31, 2014.”).)
Nevertheless, Lunn did not vacate the Property until
November 5, 2014.

(Recons. Mot. at 1.)

After she moved out, a

Town building inspector noted the following issues:
The living room required covers for electrical outlets and
light switches.
The bathroom and the kitchen were left in an unsanitary state.
The kitchen’s electrical panel had been tampered with.
The Property’s exterior was covered with debris and garbage.
The rain gutters were clogged.
A building permit for the finished basement was open.
Throughout the unit, the ceilings, walls, doors, and floors
were in a state of disrepair.
All bedrooms required smoke detectors.
5

(Inspector’s

Nov.

24,

2014

Ltr.

at

41.)

Previously,

in

January 2014, a Town building inspector noted some of these issues.
(Inspector’s Jan. 28, 2014 Ltr. at 22–30 (noting, among other
items,

missing

smoke

detectors,

unresolved

building

permit,

damaged doors, floors, and living room walls).)
II.

The Procedural History
Plaintiffs

(Docket Entry 1.)

filed

the

Complaint

on

October

6,

2014.

The Town was served by the United States

Marshals Service on April 20, 2015. (Docket Entry 17.) Plaintiffs
contends that the United States Marshals Service failed to timely
serve the Town.

(Pl.’s May 4, 2015 Ltr., Docket Entry 19, at 1.)

Plaintiffs

asserted

three

claims

against

the

Town:

breach of contract, (Compl. ¶¶ 47–66); unjust enrichment, (Compl.
¶¶ 67–76); and equitable estoppel, (Compl. ¶¶ 78–98).5
liberally,

the

Complaint

seeks

equitable

relief,

Construed
injunctive

relief, compensatory damages, and emotional distress damages.
(Compl. ¶¶ 3, 108(a)–(c).)

Although the Complaint states that

“[t]he amount in controversy is in excess of $75,000.00 U.S.D which
include[s] costs and fees,” (Compl. ¶ 3), each cause of action

Plaintiffs asserted the same claims against Lunn and the
County. Plaintiffs also allege that Lunn violated the Racketeer
Influenced and Corrupt Organization Act (“RICO”). (Compl.
¶¶ 101–06.)
5

6

seeks $37,106 in damages: $18,050 in property damage and $19,056
in unpaid rent as of October 2014.6

(Compl. ¶¶ 59, 64–65.)

On May 12, 2015, the Town moved to dismiss the Complaint
on three grounds: (1) Plaintiffs failed to satisfy the $75,000
amount-in-controversy

requirement,

(Town’s

Br.

at

7–10);

(2) Plaintiffs did not serve the Town with a summons and complaint
within 120 days of filing the Complaint with the Court, (id. at 10–
12); and (3) Plaintiffs failed to state a claim, (id. at 12–17).7
Plaintiffs filed a two-page opposition which provided no
substantive response to the Town’s arguments on damages.
Opp., Docket Entry 27, at 1.)

(Pl.’s

Plaintiffs noted that Lunn vacated

the Property after the Complaint was filed but did not clarify
whether additional damages occurred.

(Id. at 1, 7.)

Instead,

Plaintiffs stated only that “[t]he amount in controversy is over
$75,000.00 in Property Damage and Back Rent.”

(Id. at 1.)

On January 19, 2016, Plaintiffs filed a motion for
sanctions against the Town and the County for alleged noncompliance
with discovery.

(Docket Entry 52.)

Plaintiffs also filed a

For the unjust enrichment claim, Plaintiffs split the unpaid
rent between the Town ($7,812) and the County ($11,244).
(Compl. ¶¶ 72-73.)
6

On May 11, 2015, the County filed its answer. (Docket
Entry 23.) Because Lunn failed to answer or otherwise defend
herself, the Clerk of the Court entered a default against her.
(Docket Entry 56.)
7

7

request to remove the redacted portion of certain documents.
(Docket Entry 53.)
On March 4, 2016, the Court dismissed the case for lack
of subject matter jurisdiction:
Plaintiffs state, flatly and without more,
that “[t]he amount in controversy is in excess
of $75,000.00 U.S.D which include[s] costs and
fees.” But that contention is belied by their
damages calculation, which amounts to $37,106
against all Defendants. . . . Moreover, the
Complaint does not state that the precise
amount of damages is uncertain or that damages
continue to accrue, nor do Plaintiffs offer
any clarification on their damages calculation
in their opposition letter, which simply
rejects the Town’s arguments.
(March 2016 M&O at 8) (internal citations omitted).

The Court

made two other pertinent findings: (1) the Complaint, construed
liberally, does not plausibly allege emotional distress damages,
and (2) the RICO claim “seeks the same damages as the other
claims.”

(Id. at 8 n.8, 9.)

Furthermore, the Court dismissed

without prejudice the Nassau County Social Services sua sponte and
dismissed Plaintiffs’ two motions as moot.
III.

(Id. at 11.)

The Reconsideration Motion
On March 7, 2016, Plaintiffs filed their motion for

reconsideration.

(Docket Entry 59.)

As for subject matter

jurisdiction, Plaintiffs contend that they could not provide a
final damages calculation because Lunn did not vacate the Property
until November 4, 2014, one month after this lawsuit was filed.

8

(Recons. Mot. at 1.) Between January and February 2016, Plaintiffs
prepared
(2) labor

sworn

affidavits

estimates,

that

address

(3) outstanding

(1) total

rent,

damages,

(4) unpaid

labor,

(5) paid property damage, and (6) unpaid property damage.
at 5–11.)
in

(Id.

Plaintiffs now seek $104,217.54 in damages: $75,433.54

property

damage

and

$28,784.00

in

unpaid

rent

as

of

October 2014. (Id. at 5.) In this revised calculation, Plaintiffs
seek lost rent and additional property damage.

(Id. at 6–11.)

DISCUSSION
As a general matter, pro se litigants are entitled to
“‘special solicitude.’”

Triestman v. Fed. Bureau of Prisons, 470

F.3d 471, 475 (2d Cir. 2006) (quoting Ruotolo v. I.R.S., 28 F.3d
6, 8 (2d Cir. 1994).

The Court must construe their submissions

liberally and interpret them “‘to raise the strongest arguments
that they suggest.’”

Kirkland v. Cablevision Sys., 760 F.3d 223,

224 (2d Cir. 2014) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)). This leeway, however, does not excuse them “‘from
compliance

with

relevant

rules

of

procedural

and

substantive

law.’” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quoting
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981)).
I.

Standard of Review for Reconsideration Motions
To begin, the Court will address reconsideration of its

decision

on

the

Town’s

motion

to

dismiss.

A

motion

for

reconsideration is appropriate when the moving party believes that
9

the

Court

overlooked

important

“‘matters

or

controlling

decisions’” that would have influenced the prior decision.

Shamis

v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)
(quoting Local Civ. R. 6.3).

In that regard, reconsideration is

not a proper tool to repackage arguments and issues already
considered by the Court in deciding the original motion. Lehmuller
v. Inc. Vill. of Sag Harbor, 982 F. Supp. 132, 135 (E.D.N.Y. 1997).
Nor is it proper to raise new arguments and issues.

Id.

In other

words, reconsideration “will generally be denied unless the moving
party can point to controlling decisions or data that . . . might
reasonably be expected to alter the conclusion reached by the
court.”

Davidson v. Scully, 172 F. Supp. 2d 458, 461 (S.D.N.Y.

2001); see also Schrader v. CSX Transp., Inc., 70 F.3d 255, 257
(2d Cir. 1995) (recognizing that the standard for reconsideration
is “strict”) (collecting cases).
II.

The Town’s Motion to Dismiss
A.

Amount-in-Controversy Requirement
“[F]ederal courts are courts of limited jurisdiction and

may

not

decide

jurisdiction.”

cases

over

which

they

lack

subject

matter

Lyndonville Sav. Bank & Trust Co. v. Lussier, 211

F.3d 697, 700 (2d Cir. 2000).

As relevant here, federal courts

have subject matter jurisdiction when the lawsuit is between
“citizens of different States” and the amount in controversy
exceeds “$75,000, exclusive of interests and costs.”
10

28 U.S.C.

§ 1332(a)(1); see also St. Paul, 409 F.3d at 80 (“Diversity is not
complete if any plaintiff is a citizen of the same state as any
defendant.”).

The parties meet the diversity requirement because

Plaintiffs are citizens of Florida and Defendants are citizens of
New York.

(Compl. ¶¶ 5, 9.)

The remaining question, then, is

whether the Court erred in holding that Plaintiffs’ prayer for
damages

does

not

exceed

the

$75,000

amount-in-controversy

requirement.
Plaintiffs filed their Complaint on October 6, 2014.
(Docket Entry 1.)
¶¶ 59, 64–65.)

In it, they claim $37,106 in damages.

(Compl.

The Court therefore dismissed the case for lack of

subject matter jurisdiction.

(March 2016 M&O at 11.)

In filing

their reconsideration motion, however, Plaintiffs assert that Lunn
vacated the Property after the Complaint was filed and that
additional damages occurred.
But

“‘post-filing

(Recons. Mot. at 1.)
event[s]’

do

not

affect

the

calculation of the amount in controversy, which is ‘established as
of the date of the complaint and is not reevaluated based on postfiling events.’”

Carling v. Peters, No. 10-CV-4573, 2013 WL

865842, at *3 (S.D.N.Y. Mar. 8, 2013) (alteration and emphasis in
original) (quoting Hall v. EarthLink Network, Inc., 396 F.3d 500,
506 (2d Cir. 2005)).

But see Hall, 396 F.3d at 506–07 (permitting

post-filing events if they “suggest that the amount in controversy
allegation in the complaint was made in bad faith”).
11

Plaintiffs,

as the parties invoking jurisdiction, bear the burden of proving
that their claims meet the minimum jurisdictional amount to a
“‘reasonable

probability.’”

Tongkook

Am.,

Inc.

v.

Shipton

Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (quoting Moore v.
Betit, 511 F.2d 1004, 1006 (2d Cir. 1975)); see also St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 290, 58 S. Ct.
586,

591,

82

L.

Ed.

845

(1938)

(emphasizing

that

the

party

asserting jurisdiction “knows or should know whether his claim is
within the statutory requirement as to amount”).

The Second

Circuit “recognizes a rebuttable presumption that the face of the
complaint is a good faith representation of the actual amount in
controversy.”

Wolde-Meskel v. Vocational Instruction Project

Cmty. Servs., Inc., 166 F.3d 59, 63 (2d Cir. 1999); Tongkook, 14
F.3d at 784 (presuming “‘good faith’” unless, for example, it
“appear[s] to a legal certainty that the claim is really for less
than the jurisdictional amount”) (quoting St. Paul, 303 U.S.
at 288–89, 58 S. Ct. at 591).
To meet their burden, Plaintiffs must support their
jurisdictional facts “with ‘competent proof and justify [their]
allegations by a preponderance of the evidence.’”

United Food

Com. Workers’ Union v. CenterMark Props. Meridian Square, Inc., 30
F.3d 298, 305 (2d Cir. 1994) (quoting McNutt v. GMAC of Ind., Inc.,
298 U.S. 178, 189, 56 S. C. 780, 785, 80 L. Ed. 1135 (1936).

In

other words, Plaintiffs cannot rely on speculative or conclusory
12

allegations.

Spaulding v. Figeroux, No. 16-CV-1040, 2016 WL

1240428, at *3 (E.D.N.Y. Mar. 29, 2016); Mallgren v. Microsoft
Corp., 975 F. Supp. 2d 451, 456 (S.D.N.Y. 2013) (dismissing a pro
se compliant because of “conclusory” allegations that did not
satisfy the plausibility standard); Wood v. Maguire Automotive
LLC, 508 F. App’x 65, 65 (2d Cir. 2013) (finding that conclusory
allegations on the $75,000 amount-in-controversy requirement are
“not entitled to a presumption of truth”).

In reviewing the

complaint and any associated materials, federal courts may conduct
an independent appraisal of the alleged damages.
WRIGHT

ET AL.,

4C CHARLES ALAN

FEDERAL PRACTICE & PROCEDURE § 3725.1, n.12 (4th ed. 2009

and Supp. 2014).
Here, the Court correctly found that Plaintiffs did not
satisfy the amount-in-controversy requirement, as they failed to
allege to a “reasonable probability” that they suffered damages in
excess of $75,000.

Their claims, at bottom, seek $37,106 in

damages: $18,050 in property damage and $19,056 in unpaid rent as
of October 2014.

(Compl. ¶¶ 59, 64–65.)

To be sure, paragraph

three of the Complaint states that “[t]he amount in controversy is
in excess of $75,000.00 U.S.D which include[s] costs and fees.”
(Compl. ¶ 3.)

But Plaintiffs’ “boilerplate statement that [their]

claims satisfy the amount in controversy sheds no light on the
actual amount of damages.”

See Parker v. Riggio, No. 10-CV-9504,

2012 WL 3240837, at *8 (S.D.N.Y. Aug. 6, 2012).
13

What is more, the

amount in controversy must exceed “$75,000, exclusive of interests
and costs,” 28 U.S.C. § 1332(a)(1), and this claim was speculative
at the time of filing.

Although Lunn did not vacate for another

month, the Town building inspector surveyed the Property and
provided a letter outlining his findings, a copy of which is
attached to the Town’s motion to dismiss.
24, 2014 Ltr. at 41.)

(See Inspector’s Nov.

A fair reading of that letter does not

suggest that Plaintiffs’ damages would increase by approximately
$38,000.

(Compare id. with Inspector’s Jan. 28, 2014 Ltr. at 22–

30.)
Nor did Plaintiffs’ opposition clarify their factual
allegations after Lunn vacated the Property.
7.)

(Pl.’s Opp. at 1,

On this subject, they flatly dismiss the Town’s arguments,

stating only that “[t]he amount in controversy is over $75,000.00
in Property Damage and Back Rent.”

(Id. at 1.)

The lack of

clarity is especially perplexing given the level of detail in the
Complaint

where

Plaintiffs

provided

an

itemized

damages and the specific months with unpaid rent.

breakdown

of

(See, e.g.,

Compl. ¶¶ 51–65.)
Outside of the boilerplate statement of $75,000 and the
repeated demands for $37,106, the Court perceives three other
avenues for relief: (1) equitable remedies, (2) emotional distress
damages, and (3) the RICO claim against Lunn because it does not
request a precise monetary value.
14

(Compl. ¶¶ 3, 101–06, 108(a)–

(c).)

The Court did not err in finding that these avenues were

not successful in light of the speculative nature of these claims.
First, the Court cannot state to a “reasonable probability” that
either equitable relief or injunctive relief exceed $75,000.

See

Parker, 2012 WL 3240837, at *7; see also Dimich v. Med-Pro, Inc.,
304 F. Supp. 2d 517, 519 (S.D.N.Y. 2004) (“Benefits from an
injunction

must

not

be

‘too

speculative

and

immeasurable.’”)

(quoting Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1270 (11th
Cir. 2000)).

Second, Plaintiffs failed to offer competent proof

that emotional distress damages are viable.
at 9.)

(See March 2016 M&O

Third, the RICO claim does not seek additional damages

outside of the $37,106 alleged.
In

light

of

the

(See id. at 8 n.8.)
above,

Plaintiffs’

motion

for

reconsideration is denied without prejudice to Plaintiffs’ filing
an

amended

affidavits

complaint.
that

detail

Plaintiffs
$104,217.54

have
in

provided

damages:

post-filing

$75,433.54

in

property damage and $28,784.00 in unpaid rent as of October 2014.
(Recons. Mot. at 5.)
III. Leave to Amend
The Court’s usual practice is to allow a plaintiff leave
to amend “when justice so requires.”

FED. R. CIV. P. 15(a)(2).

But

“a court should deny a request to amend where there has been undue
delay or bad faith, if the proposed amendment is futile, or if
leave to amend will result in prejudice to the opposing party.”
15

Darden, 191 F. Supp. 2d at 399; accord Ferrara v. Smithtown
Trucking Co., Inc., 29 F. Supp. 3d 274, 285 (E.D.N.Y. 2014).
that

basis,

the

Court

will

consider

arguments in its motion to dismiss.

the

rest

of

the

On

Town’s

See Jordan v. Verizon Corp.,

No. 08-CV-6414, 2008 WL 5209989, at *5 (S.D.N.Y. Dec. 10, 2008).
A.

Rule 12(b)(5)
The Town moved to dismiss the Complaint for untimely

service of process under Federal Rule of Civil Procedure 12(b)(4).
(Town’s Br. at 10–12.)

However, the Court construes this argument

as one under Rule 12(b)(5):
At the outset it is necessary to distinguish
[a] motion under Rule 12(b)(4) from that under
Rule 12(b)(5).
An objection under Rule
12(b)(4) concerns the form of the process
rather than the manner or method of its
service. . . . A Rule 12(b)(5) motion is the
proper vehicle for challenging the mode of
delivery or the lack of delivery of the
summons and complaint. Other than those cases
in which it is confused with a motion under
Rule 12(b)(5), a motion under Rule 12(b)(4) is
fairly rare.
See 5B CHARLES ALAN WRIGHT

ET AL.,

FEDERAL PRACTICE & PROCEDURE § 1350 (3d

ed. 2004) (footnotes omitted).
i.

Legal Standard

On a Rule 12(b)(5) motion to dismiss, the plaintiff bears
the burden of proving that service was timely.
Napolitano,

604

F.3d

732,

752

(2d

Cir.

Dickerson v.

2010).

As

with

Rule 12(b)(1), “a Court must look to matters outside the complaint

16

to

determine

whether

it

has

jurisdiction.”

Darden

v.

DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387
(S.D.N.Y. 2002).
Under Rule 4(j)(2), a local government, like the Town,
must

be

served

P. 4(j)(2)(B).

pursuant

to

state

law.

is

FED.

R.

CIV.

New York law requires service within 120 days of

the filing of a summons and complaint.
service

See

untimely,

Rule

4(m)

NY CPLR § 306-b.

instructs

district

courts

If
to

“dismiss the action without prejudice against that defendant or
order that service be made within a specified time.

But if the

plaintiff shows good cause for the failure, the court must extend
the time for service for an appropriate period.”8

See FED. R. CIV.

P. 4(m). Good cause springs from “exceptional circumstances, where
the insufficiency of service results from circumstances beyond the
plaintiff’s control.”

Feingold v. Hankin, 269 F. Supp. 2d 268,

276 (S.D.N.Y. 2003) (considering the prejudice to the defendant
and the plaintiff’s reasonable and diligent efforts).

“However,

even where good cause does not exist, courts remain free to
exercise their discretion in extending the time for service.”

Id.

at 277; see also DeLuca v. AccessIT Grp., Inc., 695 F. Supp. 2d

“By amendment effective December 1, 2015, the time for serving
a complaint under Rule 4(m) was reduced from 120 days to 90
days.” Stevens v. Landes, No. 13-CV-643S, 2016 WL 7210072,
at *1 n.3 (W.D.N.Y. Dec. 13, 2016). But the Court evaluates
service of process “as required by the version of Rule
4(m) . . . in effect at that time.” Id. at *1.
8

17

54, 66 (S.D.N.Y. 2010) (“Under Rule 4(m), the Court must extend
the time to serve if plaintiff has shown good cause, and may extend
the time to serve even in the absence of good cause.”).
ii.

Untimely Service of Process

Plaintiffs

filed

the

Complaint

on

October

6,

2014,

(Docket Entry 1), and the Town was served by the United States
Marshals Service on April 20, 2015, or 196 days later (Docket
Entry 17).

Although service did not occur within the required

time period, the Court finds that dismissal is not appropriate on
this ground.

Shortly after this case was filed, the Court granted

Plaintiff leave to proceed in forma pauperis and directed the
United States Marshals Service to serve the summons and Complaint.
(Jan. 29, 2015 M&O, Docket Entry 6, at 1–2).

Pro se plaintiffs

proceeding in forma pauperis “are entitled to rely on the Marshals
to effect service.”
2012).

Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir.

Therefore, because the delay in service was caused by

circumstances outside of Plaintiffs’ control, the Court finds good
cause to retroactively extend their time to serve the Complaint
until

April

20,

2015.9

Stevens,

2016

WL

7210072,

at

*2

To be sure, “[i]f a plaintiff proceeding IFP chooses to rely on
the Marshals to serve the relevant parties, and it becomes
apparent that the Marshals will not accomplish this by the Rule
4(m) or court-ordered deadline, she must advise the district
court that she is relying on the Marshals to effect service and
request a further extension of time for them to do so.”
Meilleur, 682 F.3d at 63. However, the Court will not fault
Plaintiff for failing to request an extension because the Court
9

18

(“Consequently because the court is responsible for the failure to
serve, good cause exists under Rule 4(m) for an extension of time
to complete service.”) (citing McCalman v. Partners in Care,
No. 01-CV-5844, 2002 WL 856465, at *1 (S.D.N.Y. Apr. 25, 2002)).
B.

Rule 12(b)(6)
i.

Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), the
complaint must plead “enough facts to state a claim to relief that
is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007), and
allow

the

Court

“to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”

that

the

Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868
(2009).

Although the plaintiff need not provide “detailed factual

allegations” to support his claims, Twombly, 550 U.S. at 555–56,
127 S. Ct. at 1964, Rule 12(b)(6) demands “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
at 678, 129 S. Ct. at 1949.
construes

“the

complaint

Iqbal, 556 U.S.

In evaluating the motion, the Court
liberally,

accepting

all

factual

was aware that Plaintiff was relying on the Marshals Service,
and in fact, ordered such service. (See Jan. 29, 2015 M&O at 1–
2.) In any event, based on Plaintiffs’ pro se status and the
general preference to decide cases on the merits, the Court
would exercise its discretionary authority and grant a
retroactive extension of time. See Cody v. Mello, 59 F.3d 13,
15 (2d Cir. 1995).
19

allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor.”

Chambers v. Time Warner,

Inc., 282 F.3d 147, 152 (2d Cir. 2002).
Along with the Complaint, the Court may consider “any
written

instrument

attached

to

it

as

an

exhibit,

materials

incorporated in it by reference, and documents that, although not
incorporated by reference, are integral to the complaint.”

Sira

v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (internal quotation marks
and citations omitted); see also Chambers, 282 F.3d at 153 (noting
that a document is “integral” if the complaint “relies heavily
upon its terms and effect”) (internal quotation marks and citation
omitted).
consider

Thus, as relevant for present purposes, the Court will
the

HAP

Contract,

the

Lease

Agreement,

the

Town’s

termination letter dated April 1, 2014, and the hearing officer’s
July 25, 2014 decision.
As noted above, Plaintiffs brought claims for breach of
contract, unjust enrichment, and equitable estoppel.

The Court

will address each one in turn.
ii.

Breach of Contract

Plaintiffs contend that the Town is liable for property
damage and unpaid rent.10

(Compl. ¶¶ 65–66.)

To state a claim for

The Lease Agreement is the contract at issue. (Compl. ¶ 50;
see id. ¶¶ 14, 18–19, 25.) Although the Town is not a party to
the Lease Agreement, the Town is a party to the HAP Contract,
10

20

breach of contract, a plaintiff must plausibly allege: (1) the
existence of a contract between the plaintiff and the defendant,
(2) the defendant’s breach of that contract, and (3) damages as a
result of the breach.

See Friedman v. Maspeth Fed. Loan & Savs.

Ass’n, 30 F. Supp. 3d 183, 192 (E.D.N.Y. 2014).
First, under the Lease Agreement and the HAP Contract,
Lunn is responsible for all property damage.

(Lease Agmt. at 19

¶ 9; HAP Contract at 10 ¶ 2(e), 11 ¶ 7(e)(1)–(2), 16 ¶ 12(d).)
Plaintiffs

have

not

offered

any

arguments

to

overcome

this

straightforward result.
But Plaintiffs have plausibly alleged that the Town is
responsible for unpaid rent between May 2014 and July 2014.

To

begin, the Complaint lists five groups of dates for unpaid rent:
1. July 2012 to December 2012 ($558 per month)
2. December 2013 to July 2014 ($558 per month)
3. May 2014 to July 2014 ($1,874 per month)
4. August 2014 to October 2014 ($1,874 per month)
5. August 2014 to October 2014 ($558 per month)
(Compl. ¶¶ 51, 53–54.)

The Town is responsible for the $1,874

payments, and either Lunn or the County is responsible for the
$558 payments.

(Compl. ¶¶ 51, 53, 72–73.)

Put differently, the

Town is not responsible for items one, two, or five.

As for items

which provides for housing assistance payments in connection
with the lease. (HAP Contract at 10 ¶¶ 1(a), 2(a).)
21

three and four, which span from May 2014 to October 2014, the Town
terminated the HAP Contract as of May 1, 2014. (Town’s Termination
Ltr. at 36.)
Agreement.

When the HAP Contract expires, so does the Lease

(HAP Contract at 16, ¶ 9.)

That would have foreclosed

the matter, but after the Town issued its termination letter, Lunn
appealed.

Although she was unsuccessful, the hearing officer

concluded that “Ms. Fawn-Nita Lunns’ [sic] participation in the
Section 8 Program [will] be terminated effective July 31, 2014.”
(Appeal

Decision

at

39.)

On

that

basis,

the

Town

may

be

responsible for housing assistance payments from May 2014 to
July 2014, which is item three.

Therefore, it would not be futile

for Plaintiffs to replead their breach of contract claim.
iii. Unjust Enrichment
Next, Plaintiffs contend that the Town has been unjustly
enriched by retaining payments owed to Plaintiffs for property
damage and unpaid rent.

(Compl. ¶ 73.)

To state a claim for

unjust enrichment, a plaintiff must establish three elements:
(1) that the defendant benefitted (2) at the plaintiff’s expense
and (3) that equity requires some form of compensation.

See

Agerbrink

458

v.

Model

(S.D.N.Y. 2016).

Serv.

LLC,

155

F.

Supp.

3d

448,

But a party cannot maintain an unjust enrichment

claim when a valid contract governs the dispute.

Id. at 458–59

(collecting cases); see also Beth Israel Med. Ctr. v. Horizon Blue
Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 586–87 (2d
22

Cir. 2006)

(emphasizing

that

unjust

enrichment,

as

a

quasi-

contract remedy, is “an obligation the law creates in the absence
of any agreement”) (internal quotation marks and citation omitted)
(emphasis

in

original).

Plaintiffs

have

not

challenged

the

validity of the Lease Agreement, which forms the basis of their
allegations.

In other words, Plaintiffs cannot proceed under both

breach of contract and quasi-contract theories, so their unjust
enrichment claim against the Town is DISMISSED WITHOUT PREJUDICE.
iv.

Equitable Estoppel

Plaintiffs’ final argument is easily dismissed because
equitable estoppel is an affirmative defense, not a cause of
action.

Einiger

v.

Citigroup,

Inc.,

No.

14-CV-4570,

2014

WL 4494139, at *2 n.1 (S.D.N.Y. Sept. 12, 2014) (citing Jain v. T
& C Holding Inc., No. 10-CV-1006, 2011 WL 814659, at *7 (S.D.N.Y.
Mar. 3, 2011)).

Accordingly, this claim against the Town and the

County is DISMISSED WITH PREJUDICE.
To summarize: In any forthcoming complaint, Plaintiffs
must assert proper jurisdictional allegations with respect only to
(1) the breach of contract claim against the Town and the County
and (2) the unjust enrichment claim against the County.
III. Plaintiffs’ Motions for Sanctions
As noted at the outset, Plaintiffs filed a motion for
sanctions and a motion to compel unredacted documents.

They ask

the Court to reconsider its ruling denying both motions as moot.
23

(March 2016 M&O at 11.)

The Court will address each motion in

turn.
A.

Motion for Sanctions
First, Plaintiffs sought sanctions against the Town and

the County because they allegedly failed to file timely document
requests.

(Mot. for Sanctions at 1.)

In its prior opinion, the

Court dismissed Plaintiffs’ motion as moot.

(March 2016 M&O

at 11.) However, some clarification is necessary because the Court
did not specify its grounds for doing so.
It is true that “courts have the power to impose . . .
sanctions even when they lack subject matter jurisdiction to
adjudicate the merits of a dispute.”

Chemiakin v. Yefimov, 932

F.2d 124, 129 (2d Cir. 1991); accord Sassower v. Field, 973 F.2d
75, 80–81 (2d Cir. 1992) (recognizing that district courts have
“inherent authority to sanction parties appearing before it for
acting in bad faith, vexatiously, wantonly, or for oppressive
reasons”).

But in an earlier filing, Plaintiffs raised identical

arguments--that the Town and the County did not timely serve their
document requests--which were rejected by Magistrate Judge A.
Kathleen Tomlinson.
(“The

Court

is

representations

(See, Jan. 22, 2016 Order, Docket Entry 49

not
by

taking

defendants

served on the Plaintiffs.”).)

any

action

that

their

in

light

demands

were

of

the

timely

Specifically, the Town produced an

affidavit of service, (Docket Entry 47-1), and the County produced
24

its

letter

Therefore,

and

postmarked

without

envelopes,

additional

(Docket

arguments

by

Entry

48-1).

Plaintiffs,

Judge

Tomlinson’s ruling mooted this issue, and thus the Court did not
err in dismissing Plaintiffs’ sanctions motion as moot.
B.

Motion to Compel
In their second motion, Plaintiffs sought the unredacted

version of eight exhibits, which primarily redact the name of the
lessee on various agreements and letters.
2.)

(Mot. to Compel at 1–

Without subject matter jurisdiction, the Court dismissed

Plaintiffs’ document request as moot.
The
provisions,
generally

Town

New

and

York

prohibits

the

Social
the

County

(March 2016 M&O at 11.)
have

Services

disclosure

invoked,

Law
of

Section

any

among

other

136,

which

information

that

identifies whether an individual is or has been a recipient of
public assistance.

(Town’s Mar. 1, 2016 Ltr., Docket Entry 57,

at 2; Nassau’s Apr. 21, 2015 Ltr., Docket Entry 13, at 2.)

In any

event, Judge Tomlinson stayed discovery pending the outcome of the
Town’s motion to dismiss.

(Nov. 25, 2015 Min. Order, Docket

Entry 42, at 2, ¶ 4.)
At this time the Court’s ruling stands, but if Plaintiffs
file an amended complaint and wish to pursue their request for
unredacted documents, they are granted leave to renew their motion.

25

CONCLUSION
Plaintiffs’ motion for reconsideration (Docket Entry 59)
is DENIED, but the Court GRANTS Plaintiffs leave to file an amended
complaint to satisfy the $75,000 amount-in-controversy requirement
in accordance with this Memorandum & Order.

Plaintiffs should

rely on the allegations made in their January and February 2016
affidavits,
Plaintiffs’

which

detail

remaining

claims

a

revised
are

as

damages
follows:

calculation.
(1) breach

of

contract against Nassau County and the Town of Hempstead and
(2) unjust enrichment against Nassau County.
Any Amended Complaint shall be filed within thirty (30)
days

from

the

date

of

this

Order,

shall

be

titled

“Amended

Complaint,” and shall bear the same docket number as this Order,
No. 14-CV-5938(JS)(ARL).
Complaint

supercedes

Plaintiffs are cautioned that an Amended

the

original

Complaint.

Therefore,

all

claims and allegations Plaintiffs wish to pursue should be included
in the Amended Complaint.
The Court also GRANTS Plaintiffs’ leave to renew their
motion to compel unredacted documents.

If an amended complaint is

filed, Plaintiffs may coordinate discovery matters with Judge
Tomlinson’s Chambers.
Given Plaintiffs’ pro se status, the Court certifies
that any appeal of this Order would not be taken in good faith,
and thus in forma pauperis status is DENIED for the purposes of
26

any appeal.

Coppedge v. United States, 369 U.S. 438, 444–45, 82

S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to amend the caption
to substitute Nassau County as a defendant in place of Nassau
County Social Services.

(See supra. at 2, n.1.)

The Clerk of the

Court is directed to mail a copy of this Memorandum and Order to
pro se Plaintiffs Edson Maitland and Edson Maitland, Jr.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March _ 21 _, 2017
Central Islip, New York

27