Townsend v. Public Storage, Inc.

Filing 4

ORDER & REPORT-RECOMMENDATION: It is ordered that plaintiff's # 2 MOTION for Leave to Proceed in forma pauperis filed by Nadine Townsend is GRANTED FOR PURPOSES OF FILING ONLY, the # 3 MOTION to Appoint Counsel is DENIED. It is Recommended that the # 1 Complaint filed by Nadine Townsend be DISMISSED WITH PREJUDICE pursuant to 28 USC section 1915(e)(2)(B)(i-ii). (Objections to R&R due by 5/19/2014, Case Review Deadline 5/21/2014), Motion # 2 and # 3 are terminated. Signed by Magis trate Judge Therese Wiley Dancks on 4/30/2014. Signed by Magistrate Judge Therese Wiley Dancks on 4/30/2014. (Attachments: # 1 Unpublished Decision - Brown vs. State Farm, # 2 Unpublished Decision - Johnson vs. DHS-ICE, # 3 Unpublished Decision - Rose vs. Myers, # 4 Unpublished Decision - Townsend vs. L.P. Auto Transport) {Copy of the Order and Report-Recommendation sent to the pro se plaintiff along with copies of the four unreported cases cited therein, by regular mail} (jmb)

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Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Nadine V. TOWNSEND, Plaintiff,
v.
L.T. AUTO TRANSPORT, INC., Defendant.
No. 1:13–cv–1601 (MAD/CFH).
Signed April 18, 2014.

matter if Plaintiff were granted leave to amend her
complaint. Finding that a breach of contract claim
under New York state law would be barred under the
applicable statute of limitations, Magistrate Judge
Hummel determined that any such amendment would
be futile. See id. at 6. As such, Magistrate Judge
Hummel recommended that the Court dismiss the
complaint with prejudice for failure to allege subject
matter jurisdiction. See id. at 7. Plaintiff has not objected to the Report–Recommendation.

FN1. See Townsend v. Dordofsky et al.,
1:13–cv–1603 (MAD/ATB), Dkt. No. 4 at 3
n. 1 (collecting cases).

When a party files specific objections to a magistrate judge's report-recommendation, the district
court makes a “de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28
U.S.C. § 636(b)(1). However, when a party files
“[g]eneral or conclusory objections or objections
which merely recite the same arguments [that he presented] to the magistrate judge,” the court reviews
those recommendations for clear error. O'Diah v.
Mawhir, No. 9:08–CV–322, 2011 WL 933846, *1
(N.D.N.Y. Mar. 16, 2011) (citations and footnote
omitted). After the appropriate review, “the court may
accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b) (1).

In a January 24, 2014. Report–Recommendation
and Order, Magistrate Judge Christian F. Hummel
granted Plaintiff's application to proceed in forma
pauperis, denied Plaintiff's motion to appoint counsel,
and reviewed the sufficiency of the complaint. See
Dkt. No. 4. Magistrate Judge Hummel noted that
Plaintiff alleged causes of action under several federal
statutes, and determined that “Townsend has failed to
allege a federal statute under which relief is available.” Id. at 5. Construing the complaint liberally,
Magistrate Judge Hummel t hen assessed whether the
Court could exercise diversity jurisdiction over this

A litigant's failure to file objections to a magistrate judge's report and recommendation, even when
that litigant is proceeding pro se, waives any challenge
to the report on appeal. See Cephas v. Nash, 328 F.3d
98, 107 (2d Cir.2003) (holding that, “[a]s a rule, a
party's failure to object to any purported error or
omission in a magistrate judge's report waives further
judicial review of the point” (citation omitted)). A pro
se litigant must be given notice of this rule; notice is
sufficient if it informs the litigant that the failure to
timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules

Nadine V. Townsend, Albany, NY, pro se.
ORDER
MAE A. D'AGOSTINO, District Judge.
*1 Plaintiff commenced this action pro se, along
with ten other, separate actions, on December 31,
2013.FN1 In the instant action, Plaintiff seeks damages
in the amount of $45,000,000 for harm to a van she
alleges that Defendant caused while transporting the
van from Texas to New York in 2000. See Dkt. No. 1.

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

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authority. See Frank v. Johnson, 968 F.2d 298, 299
(2d Cir.1992); Small v. Sec'y of Health and Human
Servs., 892 F.2d 15, 16 (2d Cir.1989) (holding that a
pro se party's failure to object to a report and recommendation does not waive his right to appellate review
unless the report explicitly states that failure to object
will preclude appellate review and specifically cites
28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former
6(e) of the Federal Rules of Civil Procedure).
*2 Having reviewed Magistrate Judge Hummel's
Report–Recommendation and Order and the applicable law, the Court finds that Magistrate Judge Hummel correctly recommended that the Court should
dismiss Plaintiffs complaint with prejudice. A review
of Plaintiffs complaint makes clear that the Court
lacks subject matter jurisdiction over this case. Ordinarily, a court should not dismiss a complaint filed by
a pro se litigant 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.” Branum v. Clark, 927 F.2d 698, 704–05 (2d
Cir.1991). An opportunity to amend, however, is not
required where “the problem with [plaintiff's] causes
of action is substantive” such that “better pleading will
not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d
Cir.2000) (citation omitted). As the Second Circuit
has explained, “[w]here it appears that granting leave
to amend is unlikely to be productive, ... it is not an
abuse of discretion to deny leave to amend.” Ruffolo v.
Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993).
Magistrate Judge Hummel correctly recommended
that the Court dismiss the complaint with prejudice
because the Court lacks jurisdiction over this matter;
and, therefore, amendment would be futile.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's Report–Recommendation and Order is ADOPTED in its
entirety for the reasons stated therein; and the Court
further

ORDERS that this action is DISMISSED with
prejudice; and the Court further
ORDERS that the Clerk of the Court shall close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a
copy of this Order on Plaintiff by regular mail.
REPORT–RECOMMENDATION and ORDER
CHRISTIAN F. HUMMEL, United States Magistrate
Judge.
The Clerk has sent to the Court for review a
complaint filed by pro se plaintiff Nadine Townsend
(“Townsend”). Compl. (Dkt. No. 1). Townsend has
also filed a motion to proceed in forma pauperis (IFP)
(Dkt. No. 2) and requested appointment of counsel
(Dkt. No. 3).
II. DISCUSSION
A. In Forma Pauperis Application
The Court has reviewed Townsend's IFP application. Dkt. No. 2. Because Townsend sets forth sufficient economic need, the Court finds that Townsend
qualifies to proceed IFP.
B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States
Code directs that, when a plaintiff seeks to proceed
IFP, “the court shall dismiss the case at any time if the
court determines that ... the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's
responsibility to determine that a plaintiff may
properly maintain his complaint before permitting him
to proceed with his action.
*3 Townsend brings this action against defendant
LT Auto Transport alleging that on or about February

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.

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15, 2000, Townsend entered into a contract with defendant for the transport of her van from Texas to New
York. Compl. ¶ 1. When defendant loaded the van
onto its transport truck, the van functioned well. Id. ¶
6. Moreover, Townsend indicated that she did not
want the van driven or moved off the transport truck
until it reached its final destination. Id. ¶¶ 5, 8. The
defendant did not ship the van in the time frame indicated, delivering it late to New York. Id. ¶¶ 9, 11.
When Townsend arrived to pick up the van in New
York, the transmission was broken rendering the van
inoperable. Id. ¶ 9. Townsend believes that the van
was driven or otherwise handled improperly, resulting
in damages for which the defendant refused to reimburse Townsend. Id. ¶¶ 10, 15, 19. Townsend alleges
that the van had recently had a new engine installed in
it which cost $30,000 and that she was seeking compensatory and punitive damages in the range of $45
million dollars. Id. ¶ 20.
The Court is foremost concerned with whether we
possess the jurisdiction to entertain this suit and provide the relief sought. It is well settled that a federal
court, whether trial or appellate, is obligated to notice
on its own motion the basis for its own jurisdiction.
City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507,
512 (1973); see also Alliance of Am. Ins. v. Cuomo,
854 F.2d 591, 605 (2d Cir.1988) (challenge to subject
matter jurisdiction cannot be waived); FED. R. CIV.
P. 12(h)(3) (court may raise basis of its jurisdiction
sua sponte). When subject matter jurisdiction is lacking, dismissal is mandatory. United States v. Griffin,
303 U.S. 226, 229 (1938); FED. R. CIV. P. 12(h)(3)
(“If the court determines at any time that it lacks
subject-matter jurisdiction, the court must dismiss the
action.”).
Thus, we begin with a review of the Court's jurisdiction to hear this case. Subject matter jurisdiction
may be established in two ways: (1) if there is a federal
question pursuant to 28 U.S.C. § 1331; or (2) if there is
diversity of citizenship pursuant to 28 U.S .C. § 1332.

Townsend brings this action pursuant to multiple
federal statutes, attempting to plead federal question
jurisdiction. These statutes include The Federal
Magnuson Moss Warranty Act, 15 U.S.C. §
2308(a)(c) (“MMWA”), 18 U.S.C. § 1501, and 18
U.S.C. § 1951. Compl. at 3.FN1 None of these statutes
appear to be appropriate for the relief sought.
FN1. It appears that Townsend attempted to
plead another statute as a basis for relief, but
the citation for said statute was indecipherable.
The MMWA “provides a private right of action
for a consumer against a manufacturer or retailer who
inter alia fails to comply with the terms of a written or
implied warranty.” Jackson v. Eddy's LI RV Ctr., Inc.,
845 F.Supp.2d 523, 530 (E.D.N.Y.2012) (citations
omitted). These claims, distinguishable from a breach
of contract, carry with them a four year statute of
limitations. Id. at 531. Such actions require “an implied warranty arising under State law in connection
with the sale by a supplier of a consumer product.” Id.
at 530 (internal quotation marks, alterations, and citations omitted). Townsend alleges the existence of a
service contract. She was not buying a product. There
are also no allegations that any written or implied
warranties existed. Moreover, the wrong Townsend
alleged occurred over thirteen years ago, far beyond
the four year statute of limitations. Accordingly, it
seems that this is an incorrect vehicle for the present
suit.
*4 Similarly, 18 U.S.C. § 1501 deals with assault
on a process server. This is clearly irrelevant to the
chain of events which transpired in the present action.
Last, 19 U.S.C. § 1951 deals with interference
with commerce by threats or violence. Specifically:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or

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commodity in commerce, by robbery or extortion or
attempts or conspires so to so, or commits or
threatens physical violence ... in furtherance of a
plan or purpose to do anything in violation of this
section shall be fined ... or imprisoned ... or both.
Id., § 1951(a). In this case, Townsend does not
allege that there was a robbery FN2 or any type of extortion FN3. There was no taking of property, as
Townsend voluntarily provided the van to defendant
for its transport and received her van eventually upon
its arrival in New York. Additionally, the defendant
never threatened her or acted violently per Townsend's
own description of the events. Instead, the events
indicate a different cause of action, specifically that
the defendant breached its contract with Townsend by
delivering her van to New York late and not in the
same condition as when it left Townsend's possession
in Texas. Accordingly, as Townsend has failed to
allege a federal statute under which relief is available,
dismissal appears appropriate.
FN2. Robbery is defined as “the unlawful
taking or obtaining of personal property from
the person ... against his will, by means of
actual or threatened force, or violence, or fear
of injury ....“ 18 U.S.C. § 1951(b)(1).
FN3. Extortion is defined as “the obtaining of
property from another, with his [or her]
consent, induced by wrongful use of actual or
threatened force, violence or fear ....“ 18
U.S.C. § 1951(b)(2).
Despite the fact that the statutes that Townsend
relied upon do not appear to support her claims, as a
pro se litigant, her complaint must be read liberally.
That, in conjunction with the fact that the civil cover
sheet which Townsend completed seems to indicate
that she also intended to plead jurisdiction by this
Court pursuant to diversity, compels the undersigned
to evaluate another basis for her claim. Again, as

previously discussed, Townsend's allegations are best
categorized as a claim for breach of contract, a state
law tort.
For diversity jurisdiction to exist, the matter in
controversy must exceed $75,000 and the parties must
be citizens of different states. 28 U.S.C. § 1332(a).
Townsend seeks damages in the tens of millions of
dollars. In order to sustain diversity jurisdiction, there
must be complete or total diversity, in that “the citizenship of each plaintiff is diverse from the citizenship
of each defendant. Caterpillar Inc. v. Lewis, 519 U.S.
61, 68 (1996). As Townsend is a citizen of New York
and the defendant is allegedly a citizen of Texas,
complete diversity appears to exist. In light of
Townsend's pro se status, this Court would generally
direct Townsend to amend her complaint to provide
clearer details regarding diversity jurisdiction.
However, a district court need not grant leave to
amend where any such amendment would be futile.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000)
(finding leave to replead would be futile where the
complaint, even when read liberally, did not “suggest[
] that the plaintiff has a claim that she has inadequately
or inartfully pleaded and that she should therefore be
given a chance to reframe”). “Where jurisdiction rests
upon diversity of citizenship, a federal court sitting in
New York must apply the New York choice-of-law
rules and statutes of limitations.” Stuart v. American
Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998) (citations omitted). In New York, for a breach of contract
claim, the statute of limitations for filing suit is six
years. ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120
F.3d 351, 360 (2d Cir.1997) (citing N.Y. CIV. Prac. L.
§ 213(2)). Moreover, “it is well settled that [in New
York] the statute of limitations for breach of contract
begins to run from the day the contract was breached,
not from the day the breach was discovered, or should
have been discovered.” Id. (citations omitted). Accordingly, as Townsend's cause of action began to run
in 2000, almost fourteen years ago, the fact that she
just filed her complaint renders it futile as the statute

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of limitations has expired.
C. Motion for Appointment of Counsel
*5 Townsend has also filed a motion for appointment of counsel. Dkt. No. 3. In light of the present recommendation, this motion is denied without
prejudice as moot at this time. However, in the event
this recommendation is not adopted and the complaint
is accepted by the Court, Townsend is free to renew
her request for appointment of counsel.
III. Conclusion
WHEREFORE, it is hereby
ORDERED that plaintiff's IFP application (Dkt.
No. 2) is GRANTED; and it is further

copy of the ... recommendation.” N.Y.N.D.L.R. 72
.1(c) (citing 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d
85, 89 (2d Cir.1993); Small v. Sec ‘ y of HHS, 892 F.2d
15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72, 6(a), 6(e).
Dated: Jan. 24, 2014.
N.D.N.Y.,2014.
Townsend v. L.T. Auto Transport, Inc.
Slip Copy, 2014 WL 1572801 (N.D.N.Y.)
END OF DOCUMENT

ORDERED that plaintiff's request for appointment of counsel (Dkt. No. 3) is DENIED WITHOUT
PREJUDICE and with a right to renew if this Report
and Recommendation is not adopted and the Court
accepts Townsend's complaint for filing; and it is
further
RECOMMENDED that pursuant to the Court's
review under 28 U.S.C. § 1915 and § 1915A, Townsend's complaint is DISMISSED for failure to
properly allege the Court's jurisdiction; and it is further
RECOMMENDED that, because of the futility
of amendment, Townsend not be provided an opportunity to amend her complaint; and it is further
ORDERED that the Clerk serve a copy of this
Report–Recommendation and Order on the parties in
accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may
lodge written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court
“within fourteen (14) days after being served with a

© 2014 Thomson Reuters. No Claim to Orig. US Gov. Works.