Walters v. T & D Towing Corp et al
Filing
8
ORDER granting 2 Motion for Leave to Proceed in forma pauperis; denying 7 Motion for Order to Show Cause; For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and her application for a Temporary Restraining Order and/or Preliminary Injunction is DENIED. The Clerk shall provide Summonses, copies of the Complaint, and this Order to the USMS for service upon Defendants forthwith. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 3/29/2017. C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
ALENA WALTERS,
Plaintiff,
-against-
ORDER
17-CV-0681(JS)(AKT)
T & D TOWING CORP. a/k/a T&D TOWING
CORPORATION, a/k/a T. & D. TOWING
CORP., a/k/a T&D AUTO BODY, and
ANTHONY DOUSE II, a/k/a TONY SENIOR,
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
Alena Walters, pro se
80 Atlantic Avenue, # 53
Oceanside, NY 11572
For Defendant:
No appearance.
SEYBERT, District Judge:
On February 6, 2017, pro se plaintiff Alena Walters
(“Plaintiff”) filed an Complaint against T & D Towing Corp. a/k/a
T&D Towing Corporation, a/k/a T. & D. Towing Corp., a/k/a T&D Auto
Body (“T&D Towing”), and Anthony Douse II, a/k/a Tony Senior
(“Douse”
and
together,
“Defendants”)
alleging,
inter
alia,
a
deprivation of her due process rights in connection with the tow
and retention of her motor vehicle following an accident on
September 13, 2016.
Plaintiff’s Complaint is accompanied by an
application to proceed in forma pauperis.
On March 13, 2017, Plaintiff filed an ex parte Order to
Show Cause (“OSC”) seeking the entry of a temporary restraining
order and preliminary injunction seeking to consolidate an action
commenced against Plaintiff by T&D Towing in the City of Glen Cove
Commercial Small Claims Court under Index Number CC-000001-17/GC
(the “City Court case”) and/or staying the City Court case pending
the conclusion of the present case. (See, OSC, Docket Entry 7.)
In the City Court case, T&D Towing seeks to recover damages in the
sum of $1,581.04 for the tow and storage of Plaintiff’s vehicle.
(OSC at 34.1)
Upon review of Plaintiff’s declaration in support of her
application to proceed in forma pauperis, the Court finds that
Plaintiff’s financial status qualifies her to commence this action
without prepayment of the filing fees. See 28 U.S.C. § 1915(a)(1).
Accordingly, Plaintiff’s application to proceed in forma pauperis
is GRANTED and the Court ORDERS service of the Complaint by the
United States Marshal Service (“USMS”) without prepayment of the
filing fee.
Plaintiff’s Order to Show Cause seeking the entry of
a temporary restraining order and preliminary injunction is DENIED.
BACKGROUND
Plaintiff seeks to challenge fees she has been charged
by Defendants in connection with the towing and storage of her
motor vehicle, a 2002 Mercury Sable, following an accident in the
City of Glen Cove (the “City”) on September 13, 2016.
1
(Compl. at
When referring to the Order to Show Cause and its attachments,
the Court will use the page numbers generated by the Electronic
Case Filing System.
2
1-3, and Ex. A at 28-29.2)
According to the Complaint, Plaintiff
was taken by ambulance from the scene of the accident and her car
was towed from the scene at the request of the City police by T&D
Towing.
(Compl. at 3 and Ex. D at 36-37.)
Plaintiff claims that
her vehicle was totaled in the accident and that it was towed a
distance of 1.4 miles from the scene of the accident to T&D
Towing’s
premises.
(Compl.
at
3.)
Plaintiff
claims
that,
following her discharge from the hospital later that day, she
called T&D Towing and requested that the vehicle be towed to her
home.
(Comp. at 3.)
Plaintiff alleges that she was advised to
leave the car with T&D Towing because it was “in very bad shape”
and would leak fluids on her driveway.
(Compl. at 3.)
Plaintiff
also claims that she was advised by Douso that she would be charged
ten dollars ($10) per day for the first (3) three days and twenty
dollars ($20) per day for each day thereafter.
(Compl. at 3.)
Plaintiff also alleges that she went to remove personal possessions
from her vehicle later that day and observed, although the car was
“severely damaged and obviously totaled”, the ground beneath it was
not wet and that no fluids were leaking from the vehicle.
(Compl.
at 3.)
According to the Complaint, Plaintiff arranged to have
her car junked and contacted Douso on September 23 and 27, 2016 but
2
When referring to the Complaint and the attached Exhibits, the
Court will use the page numbers generated by the Electronic Case
Filing System.
3
on each occasion Douso refused to release her car.
(Compl. at 4.)
Plaintiff claims that Douse presented Plaintiff with a bill on
September 27, 2016 in the amount of $543.13 for towing and storage
charges to date.
(Compl. at 4.)
When Plaintiff did not pay the
bill because she planned to submit it to the insurance company for
payment, Douso allegedly apprised her that storage charges would
continue to accrue daily.
(Compl. at 5.)
On September 30, 2016, Plaintiff claims to have contacted
the City police for assistance in having her car released from
Defendants without success.
(Compl. at 5.)
On October 4, 2016,
Plaintiff claims to have provided Defendants with a written request
to release her car, and, to the extent that her vehicle was being
held by Defendants as collateral for the unpaid bill, she offered
title for the car to Defendants.
Plaintiff expressly demanded
release and/or transfer of title of the vehicle so as to stop the
accrual of storage fees.
(Compl. at 5, and Ex. E at 38-39.)
On November 1, 2016, Plaintiff claims that she learned
from her insurance company that T&D Towing had received two checks
from the at-fault driver’s insurance policy--one on October 14,
2016 in the amount of $461.66 and the other on October 28, 2016 in
the amount of $803.28.
(Compl. at 6.)
Plaintiff claims that she
then called T&D Towing and spoke with Douso who refused to release
Plaintiff’s car and demanded an additional payment from Plaintiff
of approximately $400.00 (Compl. at 6.)
4
Plaintiff did not make
that payment.
On November 23, 2016, Plaintiff claims that she again
contacted the City police who advised her that although they could
not assist her with the release of her vehicle, she was entitled
to retrieve her license plates from T&D Towing.
(Compl. at 6.)
Plaintiff claims that she went to T&D Towing to retrieve her
license plates on November 25, 2016, and Douso would not release
them unless Plaintiff signed a statement, which she refused to do.
(Compl. at 6.)
Ultimately, Douso returned one of the two license
plates to Plaintiff on that date and Plaintiff was advised by an
employee at T&D Towing that the other plate could not be located.
(Compl. at 6.)
On December 1, 2016, Plaintiff claims that she received
a “money demand letter” from T&D Towing stating that, as of
November 1, 2016, Plaintiff has an open balance in the amount of
$277.54 and that daily storage fees of $20/day have continued to
accrue and will continue to accrue until payment is made in full
and the vehicle is removed.
(Compl. at 6 and Ex. F at 40-42.)
The
letter also advises that, unless payment is made, legal action will
be taken against Plaintiff.
(Compl. at 6 and Ex. F.)
On January 13, 2017, T&D Towing commenced an action
against Plaintiff in the Glen Cove City Court (the “City Court”),
Index
No.
CC-000001-17/GC,
seeking
to
recover
Plaintiff for unpaid tow and storage fees.
5
$1,581.04
from
(See OSC and Ex. A
at 33-34.)
A hearing has been scheduled in the City Court for
April 5, 2017.
(See OSC and Ex. C at 37-38.)
Based on the foregoing, Plaintiff’s Complaint alleges a
variety of claims under state law and the Code of the City of Glen
Cove. Such claims include violation of the New York State Lien Law
§ 184, unlawful towing and storage fees, and deceptive billing
practices.
Plaintiff also alleges federal claims for racketeering
and the deprivation of her due process rights under the Fourteenth
Amendment.
(Compl. at 14-15, 23-24.)
For relief, Plaintiff seeks
(1) a declaratory judgment requiring the release of Plaintiff’s car
from Defendants and rendering invalid any claim for a lien by
Defendants; (2) a restitution order returning $910.65 to the
insurance company--the sum by which Defendants have been allegedly
unjustly enriched; (3) injunctive relief enjoining Defendants from,
inter alia, charging excessive fees, denying an
owner’s request
for release of his or her vehicle after reasonable charges have
already been paid, and charging additional storage fees after an
owner has requested its release; and (4) actual damages in total
sum of $3,253.72, and punitive damages.
Plaintiff’s
temporary
retraining
ex
parte
order
Order
and/or
(Compl. at 17-18.)
to
Show
Cause
preliminary
seeks
a
injunction
consolidating the present Complaint with the City Court action
and/or staying the City Court action pending the conclusion of this
case.
(See OSC at 5-6.)
Plaintiff alleges, as grounds for her
6
motion, that consolidation of these cases is in the interests of
justice and would avoid the waste of judicial resources. Plaintiff
also claims that the City Court is not “equipped to hear or hold
trial for some of my [ ] claims . . .” and “is not accustomed to
calculating or awarding” the type of relief she intends to seek in
defenses or counter claims that have not yet even been asserted by
Plaintiff.
(See OSC at 8-9.)
Thus, Plaintiff claims that she
would suffer harm by having to litigate the City Court case prior
to the final determination of the claims raised in her Complaint
in this Court.
(See OSC at 8-9.)
DISCUSSION
I.
In Forma Pauperis Application
Upon review of Plaintiff’s declaration in support of the
application to proceed in forma pauperis, the Court finds that
Plaintiff is qualified to commence this action without prepayment
of the filing fees.
See 28 U.S.C. § 1915(a)(1).
Therefore,
Plaintiff’s request to proceed in forma pauperis is GRANTED.
II.
Application of 28 U.S.C. § 1915
Section 1915 of Title 28 requires a district court to
dismiss an in forma pauperis complaint if the action is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is immune
from such relief.
See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
The
Court is required to dismiss the action as soon as it makes such
7
a determination.
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally. See Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197,
200 (2d Cir. 2004).
However, a complaint must plead sufficient
facts to “state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007).
“A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.
Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (citation omitted).
The
plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”
Id. at 678; accord Wilson v.
Merrill Lynch & Co., 671 F.3d 120, 128 (2d Cir. 2011).
While
“‘detailed factual allegations’” are not required, “[a] pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
Iqbal, 556 U.S.
at 678 (quoting Twombly, 550 U.S. at 555).
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8
III.
Application For a Temporary Restraining Order/Preliminary
Injunction3
It is well-established that “interim injunctive relief
is
an
extraordinary
routinely granted.”
and
drastic
remedy
which
should
not
be
Buffalo Forge Co. v. Ampco–Pittsburgh Corp.,
638 F.2d 568, 569 (2d Cir. 1981) (internal quotation marks and
citation omitted).
To obtain such relief, whether in the form of
a temporary retraining order or a preliminary injunction, the
movant “must show irreparable harm absent injunctive relief, and
either a likelihood of success on the merits, or a serious question
going to the merits to make them a fair ground for trial, with a
balance of hardships tipping decidedly in plaintiff’s favor.”
Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108,
113-14 (2d Cir. 2006) (citing Jackson Dairy, Inc. v. H.P. Hood &
Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam)); see also
Christian Louboutin S.A. v. Yves Saint Laurent Am. Holdings, Inc.,
696 F.3d 206, 215 (2d Cir. 2012); see also FED. R. CIV. P. 65.
“Such relief, however, ‘is an extraordinary and drastic
remedy, one that should not be granted unless the movant, by a
clear showing, carries the burden of persuasion.’”
3
Moore v.
The Court notes that the purpose of a temporary restraining
order is to preserve the status quo and prevent irreparable harm
until the Court has decided the merits of a motion for a
preliminary injunction. Warner Bros. Inc. v. Dae Rim Trading,
Inc., 877 F.2d 1120, 1124-25 (2d Cir. 1989). Accordingly, the
Court is concerned solely with the motion for a preliminary
injunction at this time.
9
Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir. 2005)
(quoting Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865,
1867, 138 L. Ed. 2d 162 (1997)). Ultimately, the decision to grant
or deny this “drastic” remedy rests in the district court’s sound
discretion.
See, e.g., Moore, 409 F.3d at 511 (A district court
has “wide discretion in determining whether to grant a preliminary
injunction.”).
A.
Irreparable Harm
“A showing of irreparable harm is ‘the single most
important
prerequisite
injunction.’”
for
the
issuance
of
a
preliminary
Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d
110, 118 (2d Cir. 2009) (quoting Rodriguez v. DeBuono, 175 F.3d
227, 233–34 (2d Cir. 1999)).
Accordingly, “‘the moving party must
first demonstrate that such injury is likely before the other
requirements
considered.’”
for
the
issuance
of
an
injunction
will
be
Grand River Enter. Six Nations, Ltd. v. Pryor, 481
F.3d 60, 66-67 (2d Cir. 2007) (quoting Freedom Holdings, Inc. v.
Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)).
To meet the irreparable harm requirement, a plaintiff
“‘must demonstrate that absent a preliminary injunction [she] will
suffer an injury that is neither remote nor speculative, but actual
and imminent, and one that cannot be remedied if a court waits
until the end of trial to resolve the harm.’”
Faiveley, 559 F.3d
at 118 (quoting Grand River, 481 F.3d at 66).
“‘Where there is an
10
adequate
remedy
injunctions
at
are
circumstances.’”
law,
such
as
unavailable
an
award
except
of
in
money
damages,
extraordinary
Faiveley, 559 F.3d at 118 (quoting Moore, 409
F.3d at 510).
Here, as Plaintiff’s Complaint and Order to Show Cause
make clear, Plaintiff has not--and cannot--demonstrate that she
will suffer irreparable harm absent injunctive relief.
Although
Plaintiff claims that the City Court is ill-equipped to adjudicate
the claims and defenses Plaintiff intends to pursue there, she has
not filed any response to the City Court complaint nor has she even
attempted to pursue any claims or defenses there. As such, her
claimed harm is purely speculative.
And, to the extent that
Plaintiff is concerned that others may be unjustly charged for
towing and storage services provided by Defendants, she, as a
non-lawyer, cannot seek relief on behalf of anyone other than
herself.
See 28 U.S.C. § 1654; Eagle Assocs. v. Bank of Montreal,
926 F.2d 1305, 1308-10 (2d Cir. 1991) (adopting the view that “[§
1654] does not allow for unlicensed laymen to represent anyone else
other than themselves.”) (citations omitted).
Because Plaintiff
has not demonstrated that she will suffer irreparable harm absent
injunctive relief, the Court need not consider whether there is a
likelihood of success on the merits of her claims.
In the absence
of irreparable harm, Plaintiff’s application for a preliminary
injunction must be DENIED.
11
B.
Consolidation and/or Removal
Although
styled
as
a
request
for
“consolidation”,
Plaintiff, in essence, seeks to remove the City Court complaint to
this Court and, once it is removed here, consolidate it with the
present action.
The removal statute, 28 U.S.C. § 1441, provides
that:
“Except as otherwise expressly provided by Act
of Congress, any civil action brought in a
State court of which the district courts of
the
United
States
shall
have
original
jurisdiction, may be removed by the defendant
or defendants, to the district court of the
United States for the district and division
embracing the place where such action is
pending.
28 U.S.C. § 1441(a).
Thus, in order for a case to be properly
removed to the federal district court, the federal court must have
jurisdiction.
Generally speaking, a district court’s subject
matter jurisdiction is limited to the grounds set forth in 28
U.S.C. §§ 1331 and 1332. Under these statutes, jurisdiction arises
where a “federal question” is presented, see 28 U.S.C. § 1331, or
the
parties
are
of
diverse
citizenship
and
the
controversy exceeds $75,000, see 28 U.S.C. § 1332.
amount
in
Here, the
complaint in the City Court does not allege a federal question
because it seeks to recover the balance allegedly due for the
towing and storage of Plaintiff’s car, $1,581.04.
Nor is this
Court’s subject matter jurisdiction properly invoked under Section
1331 because the amount in controversy is far less than $75,000 and
12
all of the parties are New York citizens.
Section 1332 is met.
Thus, neither prong of
In the absence of a proper basis to invoke
this Court’s subject matter jurisdiction, removal, and then a later
consolidation of the removed action with the instant action, is
impossible.
C.
The Anti-Injunction Statute
Similarly, insofar as Plaintiff seeks to stay the City
Court case pending the adjudication of her Complaint here, the
Anti-Injunction
Act
precludes
such
relief.
Under
the
Anti-Injunction Act, federal courts are barred from granting “an
injunction to stay proceedings in a State court except as expressly
authorized by Act of Congress, or where necessary in aid of its
jurisdiction, or to protect or effectuate its judgments.”
U.S.C.
§
2283.
This
provision
applies
when
the
28
requested
injunction would either stay the ongoing state proceedings, as is
the case here, or prevent the parties from enforcing an order that
has already issued.
See Atl. Coast Line R.R. Co. v. Bhd. of
Locomotive Eng’rs, 398 U.S. 281, 294, 90 S. Ct. 1739, 1747, 26 L.
Ed. 2d 234 (1970).
The Anti-Injunction Act “is an absolute
prohibition against any injunction of any state-court proceedings,
unless the injunction falls within one of the three specifically
defined
exceptions
construed.
in
the
Act[,]”
which
are
to
be
narrowly
Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97
S. Ct. 2881, 53 L. Ed. 2d 1009 (1977); see also Chick Kam Choo v.
13
Exxon Corp., 486 U.S. 140, 146, 108 S. Ct. 1684, 100 L. Ed. 2d 127
(1988).
Indeed, in interpreting the Anti–Injunction Act, the
Supreme Court has directed that “[a]ny doubts as to the propriety
of a federal injunction against state court proceedings should be
resolved in favor of permitting the state courts to proceed in an
orderly fashion to finally determine the controversy.”
Atl. Coast
Line R.R. Co., 398 U.S. at 297, 90 S. Ct. 1748.
Here, Plaintiff seeks an injunction staying the City
Court
case
pending
the
resolution
of
the
instant
action.
Accordingly, the Anti-Injunction Act applies and none of the
exceptions permit this Court to enjoin the City Court action.
There is no act of Congress that expressly authorizes this Court
to enjoin the City Court action under the circumstances presented
here. Nor does the second exception, which permits a federal court
to enjoin a state court proceeding “where the effect of the state
court proceeding would be to defeat or impair the jurisdiction of
the federal court”, apply.
Cir. 2012).
Wyly v. Weiss, 697 F.3d 131, 137 (2d
Because Plaintiff’s Complaint asserts, inter alia,
independent federal claims and thus invokes this Court’s original
jurisdiction pursuant to 28 U.S.C. 1331, this exception has no
application. Finally, the third exception, which permits a federal
court to enjoin a state court action “to protect or effectuate its
judgments”,
has
no
application
because
“[t]he
relitigation
exception, which was designed to implement well-recognized concepts
14
of claim and issue preclusion, authorizes a federal court to enjoin
state litigation of a claim or issue that previously was presented
to and decided by the federal court.”
Wyly, 697 F.3d at 139
(internal quotation marks and citations omitted).
Given that the
federal action has just begun and there has been no judgment to
protect, this exception has no application.
Thus, insofar as
Plaintiff seeks to stay the City Court case, her application is
DENIED.
CONCLUSION
For the reasons set forth above, Plaintiff’s application
to proceed in forma pauperis is GRANTED and her application for a
Temporary
Restraining
DENIED.
The
Clerk
Order
shall
and/or
provide
Preliminary
Summonses,
Injunction
copies
of
is
the
Complaint, and this Order to the USMS for service upon Defendants
forthwith.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.
See Coppedge v. United States, 369 U.S. 438, 444-
45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
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15
The Clerk of the Court is further directed to mail a copy
of this Order to the pro se Plaintiff.
SO ORDERED.
/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated: March
29 , 2017
Central Islip, New York
16
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