Dunn v. Deutsche Bank National Trust Company

Filing 19

DECISION and ORDERED, that Plaintiffs Motion for a preliminary injunction (Dkt. No. 3) is DENIED; and it is further ORDERED, that Defendants Cross-motion to dismiss (Dkt. No. 10) is GRANTED; and it is further ORDERED, that Plaintiffs Motion for joind er (Dkt. No. 17) and Motion to amend the Complaint (Dkt. No. 18) are DENIED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED for lack of subject matter jurisdiction. Signed by Senior Judge Lawrence E. Kahn on October 11, 2011. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THOMAS DUNN,
Plaintiff,
-against-

5:11-CV-712 (LEK/ATB)

DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee o/b/o the
Certificate Holders of Ixis Real Estate
Capital Trust 2004-HE4 Mortgage
Pass-Through Certificates, Series
2004-HC4,
Defendant.
___________________________________
DECISION and ORDER
I.

INTRODUCTION
Plaintiff Thomas Dunn (“Plaintiff”) commenced this action pro se on June 24, 2011, seeking

to enjoin Defendant Deutsche Bank National Trust Company (“Defendant”) from proceeding in its
foreclosure action against Plaintiff and from evicting him from his home in Cicero, New York. Dkt.
No. 1 (“Complaint”); Dkt. No. 3 (“Motion for injunctive relief”). Plaintiff also requests that the
Court vacate: (1) an order of summary judgment issued by the Supreme Court of the State of New
York in Onondaga County (“New York state court”); (2) the sale of Dunn’s property; (3)
Defendant’s certificate of title; and (4) Defendant’s motion for writ of possession/eviction filed in
New York state court. Mot. at 6.
The Court denied Plaintiff’s request for a temporary restraining order (“TRO”), but held a
hearing on June 30, 2011, as to whether a preliminary injunction should issue. Dkt. No. 9.
Defendant filed a Cross-Motion to dismiss the Complaint on July 29, 2011, and a second hearing on
the matter was held on September 21, 2011. Dkt. No. 10 (“Cross-Motion”); Dkt. No. 16. At the

hearing, Plaintiff announced his intent to file an additional Motion, now presently before the Court,
to amend his Complaint by joining as defendants Mortgage Electronic Registration Systems, Inc.
(“MERS”) and Bank of America, Inc. (“Bank of America”). Dkt. Nos. 17 and 18 (“Motion to
amend”).1 For the reasons given below, Plaintiff’s Motions are denied and Defendant’s CrossMotion is granted.
II.

BACKGROUND
Plaintiff entered a mortgage transaction on May 24, 2004, whereby he promised to pay

$202,500.00 to an entity named Mortgage Electronic Registration Systems, Inc., (“MERS”), acting
solely as a nominee for Aegis Funding Corporation. Pl. Exs. 2-3, Dkt. Nos. 3-2 and 3-3. On August
9, 2006, Defendant filed a Summons and Complaint in New York state court, claiming that Plaintiff
had defaulted on the note and seeking foreclosure and sale of the property. Pl. Ex. 1, Dkt. No. 3-1.
Plaintiff filed an answer simply stating that he denied the allegations in the summons. Def. Ex. E,
Dkt. No. 10-7. The state court granted a judgment of foreclosure in favor of Defendant on January
8, 2009, and Plaintiff did not appeal from the judgment. Def. Ex. F, Dkt. No. 10-8.
Plaintiff then filed for relief pursuant to Chapter 13 of the United States Bankruptcy Code in
the United States Bankruptcy Court in the Northern District of New York (“the bankruptcy court”).
Cross-Mot. at 9. The bankruptcy court granted Defendant relief from the automatic stay of
proceedings in New York state court on September 23, 2009. Def. Ex G, Dkt. No. 10-9. Defendant
moved for a writ of assistance against Plaintiff in state court on April 20, 2011, which is still before

1

Although Plaintiff filed two separate Motions, one of which is entitled a “Motion for
Joinder” and the other a “Motion to Amend/Correct Complaint,” both essentially seek the same
object: namely, to amend the Complaint by adding MERS and Bank of America as defendants in
this action. See Dkt. Nos. 17, 18. Accordingly, the Court considers both Motions as a single
Motion to amend.
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the New York state court pending resolution of the present matter. Cross-Mot. at 6. Defendant also
served Plaintiff with a notice to quit the premises effective June 30, 2011. Mot. at 6. Plaintiff
subsequently brought the present action in federal court, alleging that MERS improperly assigned
the mortgage to Defendant, that Defendant does not in fact own the mortgage note, and therefore
lacked standing to bring a foreclosure action against Plaintiff in New York state court. See id. at 46.
III.

STANDARD OF REVIEW
A. Preliminary Injunction
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.

Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). In this Circuit, a court
shall grant a motion for a preliminary injunction only where the party seeking the injunction can
show “(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success
on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for
litigation and a balance of hardships tipping decidedly in the movant’s favor.” NXIVM Corp. v.
Ross Inst., 364 F.3d 471, 476 (2d Cir. 2004); see also Faiveley Transp. Malmo AB v. Wabtec Corp,
559 F.3d 110, 116 (2d Cir. 2009). “Such relief . . . is an extraordinary and drastic remedy, one that
should not be granted unless the movant, by a clear showing, carries the burden of persuasion.”
Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510-511 (2d Cir. 2005) (quotations and
citations omitted).
B. Motion to Dismiss
In considering a motion to dismiss pursuant to FED . R. CIV . P. 12(b)(1), the plaintiff bears
the burden of establishing subject matter jurisdiction by a preponderance of the evidence.

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Aurrechione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Furthermore,
subject matter jurisdiction may not be established by drawing inferences from the pleadings
favorable to the plaintiff. Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998);
see also London v. Polishook, 189 F.3d 196, 199 (2d Cir. 1999) (the party invoking subject matter
jurisdiction must “proffer the necessary factual predicate – not just an allegation in a complaint – to
support jurisdiction.”). Thus, the district court may refer to evidence outside the pleadings,
including affidavits or other evidence submitted by the parties, in determining whether subject
matter jurisdiction exists. Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002); Arndt v. UBS AG,
342 F. Supp. 2d 132, 137 (E.D.N.Y. 2004). Finally, “[i]f the court determines at any time that it
lacks subject matter jurisdiction, the court must dismiss the action.” FED . R. CIV . P. 12(h)(3).
Additionally, the Second Circuit requires courts to be more cautious when dismissing pro se
complaints. Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991). The Court must liberally
construe pro se submissions, McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), and
interpret them “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994). Nonetheless, a party’s pro se status does not exempt him from “compliance
with relevant rules of procedural and substantive law.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir. 2006).
IV.

DISCUSSION
Defendant argues that Plaintiff’s Complaint warrants dismissal on the grounds of res

judicata, collateral estoppel, lack of personal jurisdiction, and lack of subject matter jurisdiction.
Def.’s Memorandum of law in support of motion to dismiss (Dkt. No. 10-1). Because the Court
finds that it lacks subject matter jurisdiction over this action, it does not address the remainder of

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Defendant’s arguments.
A. Motion for Injunctive Relief and Motion to Dismiss
Upon review of the record, the Court finds that Plaintiff has failed to establish that he is
likely to succeed on the merits of his claims, or, at minimum, that there exist any substantial
questions going to the merits of his claims. Rather, Plaintiff’s claims are precluded by the RookerFeldman doctrine, which provides that the Supreme Court is the only federal court authorized to
exercise appellate jurisdiction over state court judgments. See Dist. of Columbia Court of Appeals
v. Feldman, 460 U.S. 462, 476 (1983); see also Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
In essence, the doctrine bars “what in substance would be appellate review of the state judgment in a
United States district court, based on the losing party’s claim that the state judgment itself violates
the loser’s federal rights.” See Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994); see also Ritter
v. Ross, 992 F.2d 750, 754 (7th Cir. 1993) (“[A] plaintiff may not seek a reversal of a state court
judgment simply by casting his complaint in the form of a civil rights action.”) (quoting Hagerty v.
Succession of Clement, 749 F.2d 217, 220 (5th Cir.1984)).
The Second Circuit has outlined four requirements for determining whether this doctrine
applies: (1) the plaintiff now in federal court must have lost in state court; (2) the injuries of which
the plaintiff complains must have been caused by a state court judgment; (3) the plaintiff must invite
district court review and rejection of that judgment; and (4) the state court judgment must have been
rendered before the district court proceedings commenced. Hoblock v. Albany County Bd. of
Elections, 422 F.3d 77, 85 (2d Cir. 2005) (citing Exxon Mobil Corp. v. Saudi Basic Indus. Corp.,
544 U.S. 280, 283-84 (2005)) (internal quotations omitted). Where Rooker-Feldman applies, a
federal district court does not have jurisdiction over the case and it must be dismissed. See Rooker,

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263 U.S. at 415-16.
This case clearly meets all four requirements necessary for the Rooker-Feldman doctrine to
apply. It is not disputed that: (1) Plaintiff is a loser in state court, having suffered a state court
foreclosure judgment; (2) Plaintiff complains of injuries caused by that judgment; (3) Plaintiff asks
the Court to vacate and enjoin enforcement of the state court’s orders; and (4) the state court
judgment was issued over two years before Plaintiff commenced the present action. Plaintiff is thus
effectively inviting a federal court to review and reject the foreclosure judgment against him, which
the Court lacks jurisdiction to do under Rooker-Feldman. See In re Wilson, 410 Fed. Appx. 409,
410-11 (2d Cir. 2011); Ashby v. Polinsky, 328 Fed. Appx. 20, 21 (2d Cir. 2009); Chestnut v. Wells
Fargo, No. 10-CV-4244, 2011 U.S. Dist. LEXIS 22113, at *7 (E.D.N.Y. Mar. 2, 2011); Kalamas v.
Consumer Solutions Reo, LLC, No. 09-CV-5045, 2010 U.S. Dist. LEXIS 123034, at *6 (E.D.N.Y.
Nov. 17, 2010). Accordingly, Plaintiff’s Motion for injunctive relief must be denied, and
Defendant’s Cross-Motion to dismiss must be granted.
B. Motion to Amend
Generally, a plaintiff should be freely afforded leave to amend his complaint. FED . R. CIV .
P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 212
(N.D.N.Y. 2009). However, where amendment is futile because the amended pleading fails to state
a claim or would otherwise be subject to dismissal, a court is justified in denying the amendment.
See Foman, 371 U.S. at 182; Evac, LLC v. Pataki, 89 F. Supp. 2d 250, 262 (N.D.N.Y. 2000). Based
on the above determination that subject matter jurisdiction is lacking in this case, Plaintiff’s
proposed amendments joining MERS and Bank of America would be futile, and leave to amend is
therefore denied.

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III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion for a preliminary injunction (Dkt. No. 3) is DENIED;

and it is further
ORDERED, that Defendant’s Cross-motion to dismiss (Dkt. No. 10) is GRANTED; and it
is further
ORDERED, that Plaintiff’s Motion for joinder (Dkt. No. 17) and Motion to amend the
Complaint (Dkt. No. 18) are DENIED; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED for lack of subject
matter jurisdiction; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.

DATED:

October 11, 2011
Albany, New York

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