Robertson et al v. Allen et al

Filing 84

SUMMARY ORDER - that K. Robertson be terminated from this action. That plaintiff B. Robertson's amended complaint (Dkt No. 80) is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 3/2/2016. (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.
________________________________
SUMMARY ORDER
On January 15, 2016, the court entered a Memorandum-Decision
and Order granting defendants’ motions to dismiss or for a judgment on the
pleadings and dismissing some of plaintiffs Brian and Keri Robertson’s
claims without prejudice. (Dkt. No. 79.) The court granted the Robertsons
leave to amend their complaint within thirty days of the order. (Id.) On
February 11, 2016, B. Robertson filed a submission entitled “(verified)”
“Nature of case: claim” “claim: trespass, extortion [forgery].” (Dkt. No. 80.)
County defendants as well as defendants Cappy Weiner and Andrew
Gilday filed letter submissions asking the court to close the case citing the
Robertsons’ noncompliance with the court’s January 15, 2016 order. (Dkt.
Nos. 81-83.)

The court, however, construes B. Robertson’s submission as an
amended complaint, which was confirmed by plaintiff himself in a
telephonic communication with the court. To that end, B. Robertson’s
amended complaint is timely.1
Despite the timely submission, B. Robertson’s amended complaint
still fails to state a claim on the merits. See Fed. R. Civ. P. 8(a), 12(b)(6).
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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp.v. Twombly, 550 U.S. 554, 570 (2007)); 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 [plaintiff’s] claims across
the line from conceivable to plausible.’” Transhorn, Ltd. v. United Techs.
Corp. (In re Elevator Antitrust Litig.), 502 F.3d 47, 50 (2d Cir. 2007)
(quoting Twombly, 550 U.S. at 570).

1

K. Robertson has not submitted any filing in response to the court’s order, and nonattorney B. Robertson cannot represent her interest in federal court. See Machadio v. Apfel,
276 F.3d 103, 106 (2d Cir. 2002). For that reason, the court directs the Clerk to terminate K.
Robertson from this action.

2

Although defendants have not been served or formally moved to
dismiss the amended complaint, “[a] district court has the inherent

authority to ‘dismiss a frivolous complaint sua sponte even when the
plaintiff has paid the required filing fee.’” Preacely v. City of New York, 622
F. App’x 14, 14 (2d Cir. 2015) (citing Fitzgerald v. First East Seventh St.
Tenants Corp., 221 F.3d 362, 364 (2d Cir. 2000)). B. Robertson has paid
the court’s $400 filing fee and appears pro se. (Dkt. No. 5.) In his
amended complaint, he seeks “[o]ne-hundred and [f]ourteen million, [f]orty[e]ight thousand dollars” in damages for alleged trespass and forgery by a
litany of defendants. (Am. Compl., Dkt. No. 80.) Despite the court’s
lengthy decision identifying the deficiencies in the original complaint, his
two-page amended complaint does not allege any facts, and, therefore,
fails to meet the plausibility requirement of Iqbal and Twombly.
Consequently, the amended complaint is dismissed sua sponte. See
Fitzgerald, 221 F.3d at 364.
Accordingly, it is hereby
ORDERED that K. Robertson be terminated from this action; and it is
further
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ORDERED that plaintiff B. Robertson’s amended complaint (Dkt.
No. 80) is DISMISSED; and it is further
ORDERED that the Clerk shall close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties in accordance with the Local Rules.
IT IS SO ORDERED.
March 2, 2016
Albany, New York

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