Robertson et al v. Allen et al

Filing 79

MEMORANDUM-DECISION and ORDER - That defendants' motions (Dkt. Nos. 15, 20, 42, 54, 58, 67) are GRANTED as follows: GRANTED with respect to claims challenging Family Court's neglect finding or dispositional order against Ulster County Depa rtment of Social Services, which are DISMISSED WITH PREJUDICE. GRANTED with respect to claims pursuant 42 U.S.C. § 1983 against defendants Melissa Roche, Jillian E. Jakcson, Esq., Michael Hein, Dr. Rebecca Arp, Lawrence R. Shelton, Esq., Michae l Iapoce, and Ted J. Stein, Esq., which are DISMISSED WITHOUT PREJUDICE, and the Clerk is directed to terminate the parties from this action. GRANTED with respect to all claims against defendants Ulster County Family Court, the State of New York Off ice of the Attorney General, New York State Commission on Judicial Conduct, and New York State Division of Criminal Justice Services, which are DISMISSED WITH PREJUDICE, and the Clerk is directed to terminate these parties from this action. GRANTED with respect to all claims against defendant Judge Anthony McGinty, which are DISMISSED WITH PREJUDICE, and the Clerk is directed to terminate this defendant from this action. GRANTED with respect to claims pursuant to 42 U.S.C. § 1983 against defendants Jennifer Allen and Pamela Joern, Esq., which are DISMSISED WITH PREJUDICE. GRANTED with respect to all claims raised on behalf of L.R. against Martin B. Cocose, Esq., which are DISMISSED WITH PREJUDICE. GRANTED with respect to plaintiffs& #039; state law ineffective assistance of counsel claim against Michael C. Mauceri, Esq., which is DISMISSED WITHOUT PREJUDICE. GRANTED with respect to plaintiffs' Fourteenth Amendment substantive due process claim, which is DISMISSED WITH PREJ UDICE. GRANTED with respect to all other claims against the remaining defendants: Ulster County, Ulster County Public Defenders Office, Andrew J. Gilday, Esq., Stein Legal Services, Karen McGeeney, New York State Bar Association, Donna Weiner, Capp y Weiner, which are DISMISSED WITHOUT PREJUDICE, and the Clerk is directed to terminate these defendants. ORDERED that Dr. Arp's cross claims (Dkt. No. 26) are DISMISSED. ORDERED that claims by and against Dr. Arp are further DISMISSED pursua nt to Fed. R. Civ. P. 25(a). ORDERED that plaintiffs are granted leave to file an amended complaint in full compliance with the Local Rules within thirty (30) days of the of this Order. ORDERED that should plaintiffs file an amended complaint they must serve the named defendants according to Fed. R. Civ. P. 4. ORDERED that should plaintiffs fail to file an amended complaint, the Clerk shall close this case without further order. Signed by Senior Judge Gary L. Sharpe on 1/15/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
BRIAN ROBERTSON et al.,
Plaintiffs,

1:15-cv-11
(GLS/CFH)

v.
JENNIFER ALLEN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFFS:
Brian Robertson
Pro Se
5102 Eagle Perch Way
Greensboro, NC 27407
Keri Robertson
Pro Se
5605 Devon Dr.
Harrisburg, PA 17112
FOR THE DEFENDANTS:
Jennifer Allen, Pamela Joern, Esq.,
Jillian E. Jackson, Esq., Melissa Roche,
Michael C. Mauceri, Esq., Ulster
County Department of Social Services,
Ulster County, Michael Hein, Ulster
County Public Defenders Office,
Michael Ipoace1

1

Plaintiffs incorrectly spelled Michael Ipoace’s name in their complaint. (Dkt. No. 42,
Attach. 1 at 1). The court directs the Clerk to amend the caption to reflect the correct spelling
of “Michael Iapoce.”

Maynard, O’Connor Law Firm
Route 9W
P.O. Box 180
Saugerties, NY 12477

ADAM T. MANDELL, ESQ.

Andrew J. Gilday, Esq.
Cabaniss Casey LLP
4 Tower Place, Suite 100
Albany, NY 12203

DAVID B. CABANISS, ESQ.

Barclay Damon LLP
80 State Street
Albany, NY 12207

JONATHAN H. BARD, ESQ.

Lawrence R. Shelton, Esq.
NO APPEARANCE
Marian B. Cocose, Esq., Ted J.
Stein, Esq., Stein Legal Services,
Karen McGeeney
Office of Eric Schneider
P.O. Box 3936
Kingston, NY 12402

ERIC SCHNEIDER, ESQ.

Anthony McGinty, Ulster County
Family Court, New York State Bar
Association, New York Attorney
Generals Office, New York State
Commission on Judicial Conduct,
New York Department of Criminal
Justice System, Donna Weiner
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Litigation Bureau
The Capitol
Albany, NY 12224

KEITH J. STARLIN
Assistant Attorney General

2

Dr. Rebecca Arp
Burke, Scolamiero, Mortati &
Hurd, LLP
7 Washington Square
P.O. Box 15085
Albany, NY 12212

ADAM C. HOVER, ESQ.
PETER M. SCOLAMIERO, ESQ.

Cappy Weiner
Wilson, Elser Law Firm
677 Broadway-9th Floor
Albany, NY 12207

PETER A. LAURICELLA, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiffs, husband and wife, Brian Robertson (“B. Robertson”) and
Keri Robertson (“K. Robertson”) commenced this action pro se against
twenty-five defendants2 alleging constitutional and statutory violations in
connection with New York State Family Court proceedings. (Compl., Dkt.

2

Plaintiffs sued the following defendants: Jennifer Allen, Pamela Joern, Esq., Jillian E.
Jackson, Melissa Roche, Michael C. Mauceri, Esq., Ulster County Department of Social
Services, Ulster County, Michael Hein, Ulster County Public Defenders Office, and Michael
Iapoce (collectively “county defendants”); Anthony McGinty, Ulster County Family Court, New
York State Bar Association, New York Attorney Generals Office, New York State Commission
on Judicial Conduct, New York Department of Criminal Justice System, and Donna Weiner
(collectively “state defendants”); Marian B. Cocose, Esq., Ted J. Stein, Esq., Stein Legal
Services, and Karen McGeeney (collectively “Stein defendants”); as well as Andrew J. Gilday,
Esq, Lawrence R. Shelton, Esq., Dr. Rebecca Arp, and Cappy Weiner.

3

No. 1.) Pending are motions to dismiss by state defendants, (Dkt. No. 15),
Stein defendants, (Dkt. No. 20), county defendants, (Dkt. No. 42),
defendant Cappy Weiner, (Dkt. No. 58), and defendant Andrew Gilday,
Esq., (Dkt. No. 67), on grounds including lack of subject matter jurisdiction,
lack of personal jurisdiction, improper service, and failure to state a claim.
Also pending is defendant Dr. Rebecca Arp’s motion for judgment on the
pleadings. (Dkt. No. 54.) For the reasons that follow, the motions are
granted and plaintiffs’ complaint is dismissed. As such, Dr. Arp’s cross
claims for indemnification or contribution against all defendants are
dismissed. (Dkt. No. 26 ¶¶ 70-71.) Additionally, Dr. Arp has recently
passed away, (Dkt. No. 77), and ninety days have passed without a motion
for her substitution by any party, (Dkt. No. 78). Accordingly, the claims by
and against Dr. Arp are also dismissed for this reason. See Fed. R. Civ. P.
25(a).
II. Background
A.

Facts
Initially, the court notes that plaintiffs filed a 156-page complaint

without numbered paragraphs of which the first seventy-two pages contain
almost exclusively legal conclusions. (See generally Compl.) Plaintiffs’
4

complaint also includes transcript excerpts purportedly from the Family
Court proceedings and diary entries replete with minute details of those
proceedings. Plaintiffs appear to allege numerous causes of action, but, in
most instances, fail to attribute their claims to the conduct of any particular
defendant. Nonetheless, the court has endeavored to decipher plaintiffs’
claims and organize a chronology of the factual background, although,
much remains disjointed. To assist the court in this endeavor, it has taken
judicial notice of the decisions, orders, and filings in the underlying Family
Court proceedings.3 See Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d
163, 166 n.3 (2d Cir. 2012). The factual background is divided between
the procedural history of the Family Court proceedings and, to the extent
they are decipherable, the factual allegations against particular defendants.

1.

New York Family Court Procedural History

3

The court takes judicial notice of the following decisions, orders, and judgments: (1)
Family Court’s Decision and Order dated March 29, 2013, (Dkt. No. 42, Attach. 13); (2) the
June 5, 2014 Appellate Division Opinion and Order, (Dkt. No. 42, Attach. 14 at 1-3); (3) the
September 11, 2014 Court of Appeals Opinion, (Dkt. No. 42, Attach. 14 at 4); (4) Family
Court’s Decision after Dispositional Hearing dated September 30, 2014, (Dkt. No. 42, Attach.
17); (5) the November 6, 2014 Family Court Order of Fact-Finding and Disposition, (Dkt. No.
42, Attach. 15); (6) K. Robertson’s Notice of Appeal dated October 9, 2014, (Dkt. No. 42,
Attach. 18); and (7) B. Robertson’s Notice of Appeal dated November 19, 2014, (Dkt. No. 42,
Attach. 16).

5

Plaintiffs are the biological parents of minor daughter L.R. (Compl. at
76.) L.E. is the minor son of K. Robertson from a previous relationship,
and B. Robertson is his stepfather. (Id. at 100-01.) From 2011 through the
commencement of the Family Court proceedings, plaintiffs resided
together with L.R. and L.E. in Ellenville, New York. (Id. at 110-11.)
In March 2012, B. Robertson was designated a level three sex
offender under New York’s Sex Offender Registration Act (SORA). (Id. at
101-02); see N.Y. Correction Law art. 6-C. After an investigation, the
Ulster County Department of Social Services (DSS) filed petitions alleging
both plaintiffs neglected the children. (Compl. at 101-02.) DSS alleged
that B. Robertson was a registered sex offender who resided with his twoyear-old daughter and fourteen-year-old stepson. (Id. at 100-01.) DSS
claimed that B. Robertson never participated in, or completed his sex
offender treatment in violation of his post-release supervision. (Id.) DSS
also alleged that K. Robertson allowed her husband unsupervised access
to her son and daughter despite being a classified sex offender. (Id. at
102.) DSS contended that K. Robertson was aware that her husband was
convicted of two sex crimes, which included vaginal intercourse with an
eighteen-month-old child and placing his penis in the mouth of his other
6

daughter who was two years old at the time. (Id.)
In March 2013, Family Court found that L.R. and L.E. had been
neglected by plaintiffs for the reasons stated in the petition, and this finding
was affirmed on appeal. (Dkt. No. 42, Attachs. 13, 14.) After a
dispositional hearing, Family Court entered a final order. (Dkt. No. 42,
Attach. 15.) The court ordered that B. Robertson be placed under the
supervision of DSS for one year, have no visitation or contact with L.R. and
only supervised telephone contact with L.E., attend and complete sex
offender treatment, and comply with the court’s order of protection. (Id. at
3-5.) The court granted K. Robertson custody of the children, placed her
under the supervision of DSS for one year, and required her to attend
counseling and to comply with the court’s order of protection. (Id. at 8-9.)
Plaintiffs separately filed notices of appeal, and the appeals remain
pending. (Dkt. No. 42, Attachs. 16, 18.)
2.

Jennifer Allen and Pamela Joern

Jennifer Allen, a case worker, and Pamela Joern, an attorney, are
both employed by DSS. (Compl. at 77, 100.) Allen filed the abovereferenced neglect petitions against plaintiffs. (Id. at 79-80, 88, 101.) At
the fact-finding hearing in Family Court, Joern argued in her opening
7

statement that the evidence would establish the allegations in the neglect
petitions. (Id. at 100.)
B. Robertson attended Christian counseling and asserts that it fulfills
his mandatory sex offender treatment. (Id. at 83-84, 89.) Additionally,
plaintiffs maintain there is “no credible evidence” that B. Robertson was left
alone with the children. (Id. at 81.) In light of these facts, plaintiffs contend
that Allen filed an illegal neglect petition, and Joern argued in support of
the illegal neglect petition. (Id. at 91, 100.)
3.

Marion Cocose and Pamela Joern

As required by New York law, see N.Y. Fam. Ct. Act § 249, Marion
Cocose was appointed as attorney for the child L.R. (Compl. at 104.)
During the Family Court proceedings, Cocose and Joern assisted each
other by asking the witnesses questions that the other attorney forgot to
ask. (Id.) Cocose and Joern communicated throughout the proceedings
by passing notes and whispering. (Id.) On the basis of these facts,
plaintiffs allege Cocose and Joern had a conflict of interest by colluding
with each other and that Cocose failed to effectively represent L.R.
because of such collusion. (Id. at 103-04.)
4.

Michael Mauceri
8

Mauceri represented B. Robertson at the Family Court proceedings
apparently as his appointed counsel. (Id. at 87); see N.Y. Fam. Ct. Act
§ 262. B. Robertson informed Mauceri that DSS had filed an illegal neglect
petition. (Compl. at 87.) B. Robertson drafted a motion to dismiss the
petition and wanted Mauceri to file his motion. (Id. at 88.) Mauceri filed his
own motion to dismiss, which was subsequently denied by Family Court.
(Id. at 95.) During the fact-finding hearing, B. Robertson complained to the
presiding judge, the Honorable Anthony McGinty, that Mauceri would not
file a motion for summary judgment to dismiss the neglect petition. (Id.)
Judge McGinty explained to B. Robertson that he already denied his
attorney’s motion to dismiss and the attorney would have a later
opportunity to advocate for certain findings. (Id.) During the dispositional
proceeding, Judge McGinty also sustained an objection to Mauceri’s
questioning of a witness and Mauceri abided by the court’s ruling. (Id. at
96.) On the basis of these facts, plaintiffs contend that Mauceri
ineffectively represented B. Robertson. (Id. at 94, 96-100.)
5.

Judge McGinty

Judge McGinty presided over all phases of the Family Court
proceedings against plaintiffs. (Dkt. No. 42, Attachs. 13, 15, 17.) Despite
9

knowing of alleged violations that occurred during the Family Court
proceedings, plaintiffs claim that Judge McGinty failed to remedy any of the
conduct by Allen, Joern, Cocose, and Mauceri, see supra Part II.A.2-4.
(Compl. at 94, 100, 104.)
6.

Karen McGeeny

Karen McGeeny is a freelance transcriptionist who was the court
reporter for the Family Court proceedings. Plaintiffs contend she falsified
the transcripts of the Family Court proceedings. (Id. at 110.)
7.

Cappy Weiner

Cappy Weiner is an attorney who represented plaintiffs at an
unknown point in the Family Court proceedings. (Id.) Weiner’s wife,
Donna Weiner, works for Judge McGinty and plaintiffs allege Weiner had a
conflict of interest because he did not inform them of his wife’s employer.
(Id.)
B.

Procedural History
Plaintiffs commenced this action on January 5, 2015 by filing a 156-

page complaint. (See generally Compl.) Plaintiffs sent a summons and
complaint by certified mail to all defendants except for Ulster County. (Dkt.
No. 8.) Ulster County was not served by any method. Dr. Arp answered,
10

asserted affirmative defenses, and cross-claimed against all defendants for
indemnification or contribution. (Dkt. No. 26.) Gilday also answered and
asserted affirmative defenses. (Dkt. No. 50.) All other defendants filed
pre-answer motions to dismiss on various grounds. (Dkt. Nos. 15, 20, 42,
58.) Dr. Arp and Gilday subsequently filed their own motions, a motion for
judgment on the pleadings and a motion to dismiss, respectively. (Dkt.
Nos. 54, 67.)
III. Standards of Review
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter jurisdiction

under Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d
110, 113 (2d Cir. 2000). “In resolving a motion to dismiss for lack of
subject matter jurisdiction . . . a district court . . . may refer to evidence
outside the pleadings.” Id. “[W]hen the question to be considered is one
involving the jurisdiction of a federal court, jurisdiction must be shown
affirmatively, and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it.” Shipping Fin. Servs. Corp.
v. Drakos, 140 F.3d 129, 131 (2d Cir.1998).
11

B.

Motion to Dismiss for Lack of Personal Jurisdiction
When a defendant calls personal jurisdiction into question by

invoking Rule 12(b)(2), the plaintiff bears the burden of satisfying the court
that it has jurisdiction over the moving defendant. See MacDermid, Inc. v.
Deiter, 702 F.3d 725, 727 (2d Cir. 2012). In the absence of an evidentiary
hearing, the plaintiff’s “allegations in the complaint must be taken as true to
the extent they are uncontroverted by the defendant’s affidavits.” Id.
(internal quotation marks and citation omitted).
C.

Motion to Dismiss for Insufficient Service of Process
When a defendant moves to dismiss for insufficient service of

process under Rule 12(b)(5) of the Federal Rules of Civil Procedure, “[t]he
burden is on the plaintiff to establish that his service was not insufficient.”
DiFillippo v. Special Metal Corp., 299 F.R.D. 348, 353 (N.D.N.Y. 2014)
(internal quotation marks and citation omitted). “Conclusory statements
that a defendant was properly served are insufficient to meet that burden.”
Flemming v. Moulton, No. 9:13-CV-1324, 2015 WL 5147035, at *4
(N.D.N.Y. Sept. 1, 2015) (internal quotation marks and citation omitted).
“In resolving the motion, the court must look to matters outside the
complaint to determine what steps, if any, the plaintiff took to effect
12

service.” Id. (internal quotation marks and citation omitted). If service is
deficient, “the court may, but is not required to, dismiss the action[, or] the
court may grant leave to allow the plaintiff to cure the insufficiency.”
DiFillippo, 299 F.R.D. at 353 (internal quotation marks and citation
omitted).
D.

Motion to Dismiss for Failure to State a Claim and Motion for
Judgment on the Pleadings
“The standard for addressing a Rule 12(c) motion for judgment on

the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.” Wright v. Monroe Cmty. Hosp., 493 F. App’x 233,
234 (2d Cir. 2012) (internal quotation marks and citation omitted). For a
full discussion of the governing standard, the court refers the parties to its
prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215,
218 (N.D.N.Y. 2010), abrogated on other grounds by J.C. Christensen &
Assocs., Inc., 786 F.3d 191 (2d Cir. 2015).
IV. Discussion
A.

Subject Matter Jurisdiction
County defendants argue that the court does not have jurisdiction

over the action under the Rooker-Feldman and Younger doctrines. (Dkt.

13

No. 42, Attach. 1 at 3-5.) Regarding the Rooker-Feldman doctrine, county
defendants contend that plaintiffs ask the court to vacate the underlying
Family Court order. (Id. at 4.) In reply, B. Robertson4 does not address
county defendants’ arguments, but appears to assert that the court has
both diversity and federal question jurisdiction. (Dkt. No. 70 at 5-7.)
Under the Rooker-Feldman doctrine, a federal district court lacks
jurisdiction over appeals from state court judgments. See generally
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Court
of Appeals v. Feldman, 460 U.S. 462 (1983); see also Hoblock v. Albany
Cty. Bd. of Elections, 422 F.3d 77, 84 (2d Cir. 2005). To determine if this
doctrine applies, a court must assess whether the following four
substantive and procedural requirements are met: (1) the plaintiff
complains of an injury from a state court judgment; (2) the plaintiff seeks
federal court review and rejection of the state court judgment and; (3) the
federal action is commenced after the state court judgment; and (4) the
same parties are in both suits. See Hoblock, 422 F.3d at 85, 89.

4

Only B. Robertson signed the response to defendants’ motions. As a pro se litigant,
B. Robertson cannot represent the interest of other pro se parties. See Snyder v. Perry, No.
14-CV-2090, 2015 WL 1262591, at *5 (E.D.N.Y. Mar. 18, 2015). Therefore, only B.
Robertson, and not K. Robertson, responded to defendants’ motions.

14

The Younger doctrine, on the other hand, requires a federal court to
abstain where, “(1) there is an ongoing state proceeding; (2) an important
state interest is implicated; and (3) the plaintiff has an avenue open for
review of constitutional claims in the state court.” Liberty Mut. Ins. Co. v.
Hurlbut, 585 F.3d 639, 647 (2d Cir. 2009) (internal quotation marks and
citations omitted); see also Younger v. Harris, 401 U.S. 37 (1971). A
federal court, however, may “intervene in a state proceeding upon a
showing of bad faith, harassment or any other unusual circumstance that
would call for equitable relief.” Diamond “D” Constr. Corp. v. McGowan,
282 F.3d 191, 198 (2d Cir. 2002) (internal quotation marks and citation
omitted).
First, the Rooker-Feldman doctrine divests this court of jurisdiction
over some of plaintiffs’ claims. It is clear that the neglect findings against
both plaintiffs are final, (Dkt. No. 42, Attachs. 13, 14), and plaintiffs
commenced this federal action after their state court appeals had been
exhausted, (Compl.). It is similarly clear that plaintiffs filed the federal
action against DSS, which was a party to the Family Court proceeding.
(Id.) It also appears that plaintiffs allege they were statutorily and
constitutionally injured by the neglect findings, and seek federal court
15

review to vacate that order. (Id. at 77, 109.) Accordingly, the court is
without jurisdiction the hear plaintiffs’ claims against DSS attacking Family
Court’s neglect findings. See Phifer v. City of New York, 289 F.3d 49, 57
(2d Cir. 2002) (holding that challenges to final state court custody, neglect,
and visitation findings are precluded by Rooker-Feldman).
To the extent that plaintiffs challenge Family Court’s dispositional
orders, the court abstains under the Younger doctrine. First, this portion of
the Family Court proceeding is ongoing as plaintiffs’ appeals from the
dispositional orders remain pending. (Dkt. No. 42, Attachs. 16, 18.); see
Kirschner v. Klemons, 225 F.3d 227, 234 (2d Cir. 2000). Second, the suit
concerns family relationships, which is a matter traditionally reserved for
the state and raises important state interests. See, e.g., Fleming ex rel.
Fleming v. Grosvenor, No. 08-CV-3074, 2008 WL 3833589, at *3 (E.D.N.Y.
Aug. 15, 2008). Finally, plaintiffs may pursue their constitutional claims on
appeal in state court. See Hansel v. Town Court for Springfield, 56 F.3d
391, 394 (2d Cir. 1995) (holding that state court review is inadequate under
Younger only if a plaintiff is procedurally or technically barred from raising a
constitutional injury). Furthermore, plaintiffs have not plausibly alleged that
any exception to the Younger doctrine applies. See Diamond “D” Constr.
16

Corp., 282 F.3d at 198-202.
Plaintiffs’ complaint, however, is not completely dismissed by either
doctrine. Construing the pleading liberally, plaintiffs appear to allege
injuries beyond or outside of Family Court’s neglect finding or dispositional
order and, thus, the complaint is not entirely dismissed on abstention
grounds.
B.

Service
Nearly all defendants move to dismiss for deficient service under

either Rule 12(b)(2) or 12(b)(5) of the Federal Rules of Civil Procedure.
(Dkt. No. 15, Attach. 21 at 3-7; Dkt. No. 20, Attach. 4 at 9-12; Dkt. No. 42,
Attach. 1 at 2; Dkt. No. 58, Attach. 4 at 8-9; Dkt. No. 67, Attach. 2 at 2-3.)
All argue that they were improperly served by certified mail, and,
accordingly, the action should be dismissed. (Dkt. No. 15, Attach. 21 at 37; Dkt. No. 20, Attach. 4 at 9-12; Dkt. No. 42, Attach. 1 at 2; Dkt. No. 58,
Attach. 4 at 8-9; Dkt. No. 67, Attach. 2 at 2-3.) In their complaint, plaintiffs
aver that service was made pursuant to Rule 5 of the Federal Rules of Civil
Procedure. (Compl. at 75-76.) In opposition to the motions, B. Robertson
argues that New York allows service by certified mail under N.Y.
C.P.L.R. § 312-a. (Dkt. No. 70 at 4.)
17

Service of process in a civil suit is governed by Rule 4 of the Federal
Rules of Civil Procedure. See Kurzberg v. Ashcroft, 619 F.3d 176, 183 (2d
Cir. 2010). Under Rule 4(e), the method for serving an individual within the
United States is by:
(1) following state law for serving a summons in an
action brought in courts of general jurisdiction in the
state where the district court is located or where
service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and
of the complaint to the individual
personally;
(B) leaving a copy of each at the
individual’s dwelling or usual place of
abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent
authorized by appointment or by law to
receive service of process.
New York allows for personal service of an individual by: (1) personal
delivery; (2) “delivering and mailing”; or (3) serving a designated agent.
N.Y. C.P.L.R. § 308(1)-(3); see Vincent C. Alexander, Practice
Commentaries, McKinney’s Cons. Laws of N.Y., C.P.L.R. § 308, C308:2-4.
If service “cannot be made with due diligence” under either N.Y. C.P.L.R.
18

§ 308(1) or (2), then personal service may be effectuated by “affixing and
mailing” the summons and complaint. N.Y. C.P.L.R. § 308(4); see Vincent
C. Alexander, Practice Commentaries, McKinney’s Cons. Laws of N.Y.,
C.P.L.R. § 308, C308:5. B. Robertson correctly notes that personal
service may also be made by first class, certified mail under N.Y. C.P.L.R.
§ 312-a. However, for service to be complete, the defendant must return a
signed acknowledgment of receipt to the plaintiff. See N.Y. C.P.L.R.
§ 312-a(b). Here, plaintiffs never mailed acknowledgments of receipt with
their summons and complaints, and defendants never signed such an
acknowledgment. (Dkt. No. 15, Attachs. 3-20; Dkt. No. 20, Attachs. 1-3;
Dkt. No. 42, Attachs. 2-5; Dkt. No. 58, Attach. 3; Dkt. No. 67, Attach. 1.)
Plaintiffs also attempted to serve a corporation, state government
subdivisions, and a county government, its subdivisions, and its officials. A
corporation served within the United States must be served in the same
manner as an individual under Fed. R. Civ. P. 4(e)(1) or:
by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent,
or any other agent authorized by appointment or by
law to receive service of process and — if the agent
is one authorized by statute and the statute so
requires — by also mailing a copy of each to the
defendant.
19

Fed. R. Civ. P. 4(h)(1)(B). A state government and its subdivisions must
be served by either “delivering a copy of the summons and of the complaint
to its chief executive officer” or “serving a copy of each in the manner
prescribed by that state’s law.” Fed. R. Civ. P. 4(j)(2).
New York provides that service on the state must be made by either
personal delivery to: (1) the Attorney General within the state or (2) an
Assistant Attorney General at any office of the Attorney General within the
state. See N.Y. C.P.L.R. § 307(1). Service on a state agency may be
made by personal delivery on the person designated by the agency to
receive service or by mailing via certified mail to such person and by
personal delivery in accordance with N.Y. C.P.L.R. § 307(1). See id.
§ 307(2). New York requires that service upon a court be made by
personal delivery to any judge sitting on that court. See id. § 312. Finally,
to serve a New York county, county agency, or county official sued in his or
her official capacity, a plaintiff must arrange for personal delivery on “the
chair or clerk of the board of supervisors, clerk, attorney or treasurer” of
that county. Id. § 311(a)(4); see Baity v. Kralik, 51 F. Supp. 3d 414, 430
(S.D.N.Y. 2014).
Here, plaintiffs attempted to serve individuals, the subdivisions of the
20

state government, a county government and its subdivisions and officials,
and a corporation. Plaintiffs did not comply with the service requirements
for any of these defendants. See supra pp. 17-20. Rather, plaintiffs only
sent a copy of the summons and the complaint by certified mail. (Compl.
at 75; Dkt. No. 8.) Plaintiffs contend that they served defendants pursuant
to Rule 5 of the Federal Rules of Civil Procedure. (Compl. at 75.) Rule 5,
however, does not govern service of process of the original summons and
complaint. Compare Fed. R. Civ. P. 4, with Fed. R. Civ. P. 5. Nor, as
noted above, did plaintiffs fully comply with N.Y. C.P.L.R. § 312-a.
Accordingly, plaintiffs did not properly serve any defendant.
In actions commenced by pro se parties, courts liberally construe the
requirements of service of process. See Momot v. Derkowski, No. 1:13CV-987, 2014 WL 4637038, at *2 (N.D.N.Y. Sept. 16, 2014). Deficient
service is harmless error if the defendant “has actual knowledge of the
action and no prejudice results from the deficiency.” Id. (internal quotation
marks and citation omitted). Before the December 2015 amendment, a
plaintiff had 120 days to serve a defendant after the complaint was filed.
See Fed. R. Civ. P. 4(m) (amended Dec. 1, 2015). Courts must extend
this time if a plaintiff demonstrates “good cause” for failure to timely serve
21

defendants. Fed. R. Civ. P. 4(m); see Pride v. Summit Apartments, No.
5:09-CV-861, 2010 WL 2521776, at 3 n.7 (N.D.N.Y. Jun. 16, 2010)
(holding good cause existed, in part, because of plaintiff’s pro se status
and defendant was on notice of the action and not prejudiced by belated
service).
Here, good cause exists to extend plaintiffs’ time to effectuate
service. Plaintiffs are pro se litigants who attempted to serve nearly all
defendants by certified mail. Additionally, defendants are on notice of the
action as they have appeared and filed motions to dismiss. Thus,
defendants will not be prejudiced by remedial service.
C.

Failure to State a Claim & Judgment on the Pleadings
Nearly all defendants argue that plaintiffs do not meet the pleading

requirements of Rule 8 of the Federal Rules of Civil Procedure and, thus,
the action should be dismissed or the court should order a judgment on the
pleadings in defendants’ favor. (Dkt. No. 15, Attach. 21 at 7-9; Dkt. No. 20,
Attach. 4 at 6-9; Dkt. No. 54, Attach. 9 at 6-8; Dkt. No. 58, Attach. 4 at 5-8;
Dkt. No. 67, Attach. 2 at 4-8.) In reply, B. Robertson cites the general
principles of pleading requirements. (Dkt. No. 70 at 5.)
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of
22

the Federal Rules of Civil Procedure, and, similarly, a Rule 12(c) motion for
judgment on the pleadings calls upon a court to gauge the facial sufficiency
of that pleading using a standard which, though unexacting in its
requirements, “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation” in order to withstand scrutiny. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp.v. Twombly, 550
U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil
Procedure, “a pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Id. at 677–78 (quoting
Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule
commands that a complaint contain more than mere legal conclusions.
See id. at 679. To withstand a motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at
570); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.
2008). As the Second Circuit has observed, “[w]hile Twombly does not
require heightened fact pleading of specifics, it does require enough facts
to ‘nudge [plaintiffs’] claims across the line from conceivable to plausible.’”
Transhorn, Ltd. v. United Techs. Corp. (In re Elevator Antitrust Litig.), 502
23

F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570).
Pleadings drafted by pro se plaintiffs must be construed liberally and
held to lesser standards than those drafted by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). As such, reading a pro se complaint, the
court must “interpret [the complaint] to raise the strongest arguments that
[it] suggest[s].” Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d Cir. 2002)
(internal quotation marks and citation omitted). However, the “special
solicitude” afforded to pro se litigants does not allow courts to read into a
pleading claims that are inconsistent with the pleading’s allegations, nor
does it “exempt a party from compliance with relevant rules of procedural
and substantive law.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,
477 (2d Cir. 2006) (internal quotation marks and citation omitted).
After reviewing plaintiffs’ hefty and cluttered complaint, the court has
deciphered two claims: a Fourteenth Amendment substantive due process
claim and a state law ineffective assistance of counsel claim.5 For the
reasons below, these claims are dismissed. Additionally, allegations
5

In response to defendants’ motions, B. Robertson more definitively outlines his
factual allegations as they relate to specific defendants. (Dkt. No. 70 at 8-16.) While B.
Robertson’s opposition motion may be treated as effectively amending the complaint, see
Darvie v. Countryman, No. 9:08-CV-0715, 2009 WL 161219, at *4 (N.D.N.Y. Aug. 11, 2008),
the court declines to do so here because it would be unduly cumbersome and K. Robertson
did not sign the opposition to the motions.

24

against certain defendants are dismissed for more fundamental reasons as
discussed below.
1.

14th Amendment Substantive Due Process

Plaintiffs allege defendants interfered with their family in violation of
their substantive due process rights under the Fourteenth Amendment.
(See generally Compl.) “Parents have a substantive right under the Due
Process Clause to remain together [with their children] without the coercive
interference of the . . . state.” Southerland v. City of New York, 680 F.3d
127, 142 (2d Cir. 2011) (internal quotation marks and citation omitted).
Yet, “this interest is counterbalanced by the compelling governmental
interest in the protection of minor children, particularly . . . where the
protection is considered necessary as against the parents themselves.” Id.
at 152 (internal quotation marks and citation omitted). A claim is only
actionable if interference with a parent’s liberty right is “so shocking,
arbitrary, and egregious that the Due Process Clause would not
countenance it even were it accompanied by full procedural protection.” Id.

Here, plaintiffs do not direct their claim to any particular defendant,
but generally argue that their substantive due process rights have been
25

violated because B. Robertson can no longer reside with his children
pursuant to a Family Court order. (Compl. at 43-46, 149.) Although
plaintiffs contend that the allegations in the neglect petition were false,
Family Court found that plaintiffs neglected their children because B.
Robertson posed a risk to his children as he was a level three sex offender
convicted of sex crimes against minors. (Dkt. No. 42, Attach. 13 at 17-22.)
In fact, B. Robertson conceded that he was a registered sex offender, and
K. Robertson acknowledged his designation and still allowed him to reside
with her minor children. (Compl. at 103, 111.) Thus, plaintiffs fail to
demonstrate that the Family Court order was at all shocking, arbitrary, or
egregious. Consequently, plaintiffs fail to state a substantive due process
claim.
2.

Ineffective Assistance of Counsel

Plaintiffs allege ineffective assistance of counsel claims against
Mauceri, B. Robertson’s Family Court counsel, and Cocose, L.R.’s courtappointed counsel. (Compl. at 94, 96-99, 104.) As an initial matter, pro se
litigants, who are not licensed attorneys, may not represent another’s
interest in federal court. See Machadio v. Apfel, 276 F.3d 103, 106 (2d Cir.
2002). As such, “a parent not admitted to the bar cannot bring an action
26

pro se . . . on behalf of his or her child.” Tindall v. Poultney High Sch.
Dist., 414 F.3d 281, 284 (2d Cir. 2005). Thus, plaintiffs lack standing to
assert their daughter’s claims, and the court dismisses claims against
Cocose asserted on behalf of L.R.
Traditionally, there is no right to counsel in a civil case and client
grievances must be pursued through separate malpractice actions. See
James v. United States, 330 F. App’x 311, 313 (2d Cir. 2009). New York
law, however, provides the right to counsel in neglect proceedings in
Family Court. See N.Y. Fam. Ct. Act § 262(a)(iv). Thus, a client has
cognizable claim for ineffective assistance if the client demonstrates that
he or she received less than meaningful representation and suffered actual
prejudice as a result. See Matter of Julian P. (Colleen Q.), 129 A.D.3d
1222, 1224 (3d Dep’t 2015). Nonetheless, because all other claims are
dismissed as discussed above and below, the court declines to exercise its
supplemental jurisdiction over plaintiffs’ state ineffective assistance claim.
See 28 U.S.C. § 1367(c)(3).
3.

42 U.S.C. § 1983

Plaintiffs appear to allege claims pursuant to 42 U.S.C. § 1983
against all defendants. (See generally Compl.) At the outset, a plaintiff
27

must allege that a defendant is personally involved in the allegedly
unconstitutional conduct to prevail on a Section 1983 claim. See Grullon v.
City of New Haven, 720 F.3d 133, 138-39 (2d Cir. 2013). Here, plaintiffs
fail to allege the personal involvement of defendants Roche, Jackson,
Hein, Dr. Arp, Shelton, Iapoce, and Stein, and, consequently, these claims
are dismissed.
4.

Eleventh Amendment Immunity

Plaintiffs allege claims against defendants Ulster County Family
Court, State of New York Office of the Attorney General, New York State
Commission on Judicial Conduct, and New York State Division of Criminal
Justice Services.6 (Compl. at 1.) The Eleventh Amendment bars all
federal court actions “against a state or its agencies absent a waiver of
immunity or congressional legislation specifically overriding immunity.”
Mamot v. Bd. of Regents, 367 F. App’x 191, 192 (2d Cir. 2010). Because
New York has not waived its immunity as to any of the claims alleged and

6

Plaintiffs named the New York State Attorney General’s Office and the New York
Department of Criminal Justice System as defendants in their complaint. (Compl.) State
defendants contend these are not properly named state agencies. (Dkt. No. 15, Attach. 21
at 1.) The court agrees and substitutes the above-referenced names. State defendants also
claim that plaintiffs incorrectly sued the New York State Bar Association rather than the
Committee on Professional Standards for the Third Judicial Department, (id.); however, there
is no indication in plaintiffs’ complaint that this was their intent.

28

these defendants are arms of the state, the claims are dismissed. See
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984);
Gollomp v. Spitzer, 568 F.3d 355, 365-67 (2d Cir. 2009); Feingold v. New
York, 366 F.3d 138, 149 (2d Cir. 2004).
5.

Judicial Immunity

Plaintiffs assert numerous claims against Judge McGinty essentially
alleging bias and failure to correct alleged violations that occurred during
the Family Court proceedings. (See generally Compl.) Plaintiffs contend
that Judge McGinty does not have judicial immunity because Family Court
did not have jurisdiction over a proceeding commenced by an allegedly
illegal neglect petition. (Id. at 106.) Judges have absolute immunity from
liability for their judicial actions, see Bliven v. Hunt, 579 F.3d 204, 209 (2d
Cir. 2009), and are subject to liability only for non-judicial actions or judicial
actions “taken in the complete absence of all jurisdiction,” Mireles v. Waco,
502 U.S. 9, 11-12 (1991). Accordingly, “even allegations of bad faith or
malice cannot overcome judicial immunity” for a judge’s official actions.
Bliven, 579 F.3d at 209. As a Family Court judge, Judge McGinty clearly
had jurisdiction over the neglect proceedings even if the allegations within
the petitions proved to be false. See Stump v. Sparkman, 435 U.S. 349,
29

357 n.7 (1978). Accordingly, he is absolutely immune from liability, and
plaintiffs’ claims against him are dismissed.
6.

Absolute Immunity for DSS Attorneys and Caseworkers

Plaintiffs allege that Allen, a DSS caseworker, and Joern, a DSS
attorney, filed false neglect petitions against them in violation of the law.
(Compl. at 77-78, 100.) “[A]gency officials performing certain functions
analogous to those of a prosecutor should be able to claim absolute
immunity with respect to such acts.” Butz v. Economou, 438 U.S. 478, 515
(1978). Attorneys who “initiate[] and prosecute[] child protective orders
and represent[] the interests of [DSS] in Family Court [are] entitled to
absolute immunity” from section 1983 liability. Cornejo v. Bell, 592 F.3d
121, 128 (2d Cir. 2010) (internal quotation marks and citation omitted).
Accordingly, Joern is absolute immune from suit for her representation of
DSS in the Family Court proceedings.
Although caseworkers are generally entitled to qualified immunity for
their investigative duties, see id., plaintiffs, here, complain that Allen filed a
false neglect petition. This alleged conduct is more analogous to that of a
prosecutor than an investigator, and, thus, Allen is also entitled to absolute
immunity. See Emerson v. City of New York, 740 F. Supp. 2d 385, 392-93
30

(S.D.N.Y. 2010) (holding that caseworkers were absolutely immune from
suit for filing abuse and neglect petitions).
7.

Other Claims

To the extent that plaintiffs allege additional claims, such claims are
dismissed under Rule 8(a) of the Federal Rules of Civil Procedure. Rule
8(a) requires that plaintiffs provide defendants with adequate notice of the
claims alleged against them. See Wynder v. McMahon, 360 F.3d 73, 79
(2d Cir. 2004). Adequate notice is “that which will enable the adverse party
to answer and prepare for trial.” Id. (internal quotation marks and citation
omitted). Although plaintiffs’ complaint put defendants on notice of certain
claims, see supra Part IV.C.1-2, the remainder of the complaint is
ambiguous, confusing, and vague, and requires dismissal. See
Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Nonetheless,
because plaintiffs are pro se litigants, the court grants plaintiffs leave to
amend their complaint in compliance with this order.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that defendants’ motions (Dkt. Nos. 15, 20, 42, 54, 58,
67) are GRANTED as follows:
31

GRANTED with respect to claims challenging Family Court’s
neglect finding or dispositional order against Ulster County Department of
Social Services, which are DISMISSED WITH PREJUDICE; and
GRANTED with respect to claims pursuant 42 U.S.C. § 1983
against defendants Melissa Roche, Jillian E. Jackson, Esq., Michael Hein,
Dr. Rebecca Arp, Lawrence R. Shelton, Esq., Michael Iapoce, and Ted J.
Stein, Esq., which are DISMISSED WITHOUT PREJUDICE, and the Clerk
is directed to terminate the parties from this action; and
GRANTED with respect to all claims against defendants Ulster
County Family Court, the State of New York Office of the Attorney General,
New York State Commission on Judicial Conduct, and New York State
Division of Criminal Justice Services, which are DISMISSED WITH
PREJUDICE, and the Clerk is directed to terminate these parties from this
action; and
GRANTED with respect to all claims against defendant Judge
Anthony McGinty, which are DISMISSED WITH PREJUDICE, and the
Clerk is directed to terminate this defendant from this action; and
GRANTED with respect to claims pursuant to 42 U.S.C. § 1983
against defendants Jennifer Allen and Pamela Joern, Esq., which are
32

DISMISSED WITH PREJUDICE; and
GRANTED with respect to all claims raised on behalf of L.R.
against Martin B. Cocose, Esq., which are DISMISSED WITH
PREJUDICE; and
GRANTED with respect to plaintiffs’ state law ineffective
assistance of counsel claim against Michael C. Mauceri, Esq., which is
DISMISSED WITHOUT PREJUDICE; and
GRANTED with respect to plaintiffs’ Fourteenth Amendment
substantive due process claim, which is DISMISSED WITH PREJUDICE;
and
GRANTED with respect to all other claims against the
remaining defendants: Ulster County, Ulster County Public Defenders
Office, Andrew J. Gilday, Esq., Stein Legal Services, Karen McGeeney,
New York State Bar Association, Donna Weiner, Cappy Weiner, which are
DISMISSED WITHOUT PREJUDICE, and the Clerk is directed to terminate
these defendants; and it is further
ORDERED that Dr. Arp’s cross claims (Dkt. No. 26) are DISMISSED;
and it is further
ORDERED that claims by and against Dr. Arp are further
33

DISMISSED pursuant to Fed. R. Civ. P. 25(a); and it is further
ORDERED that plaintiffs are granted leave to file an amended
complaint in full compliance with the Local Rules within thirty (30) days of
the date of this Order; and it is further
ORDERED that should plaintiffs file an amended complaint they must
serve the named defendants according to Fed. R. Civ. P. 4; and it is further
ORDERED that should plaintiffs fail to file an amended complaint, the
Clerk shall close this case without further order, and it is further
ORDERED that the Clerk provide a copy of this Order to the parties
in accordance to the Local Rules.
IT IS SO ORDERED.
January 15, 2016
Albany, New York

34