J. & W. Trading and Leasing Inc. et al v. State of New York et al

Filing 115

MEMORANDUM-DECISION and ORDER - That Citizen Bank defendants' motion to dismiss (Dkt. No. 67) is GRANTED and all claims alleged against them are DISMISSED. That Bank of America defendants' motion to dismiss (Dkt. No. 85) is GRANTED and all claims against them are DISMISSED. That Woodhaven defendants' motion to dismiss (Dkt. No. 87) is GRANTED and all claims alleged against them are DISMISSED. That Key Bank defendants' motion to dismiss (Dkt. No. 88) is GRANTED and all clai ms alleged against them are DISMISSED. That plaintiff's motion for default judgment (Dkt. No. 98) is DENIED. That the cross claims by Officers Collvita and Buskey and Assistant District Attorney Van Doren for indemnification or contribution (D kt. No. 46 paras. 48-49; Dkt. No. 49 paras. 78-79) against all moving defendants are DISMISSED. That the Clerk is directed to terminate the following defendants from this action: Vinrod Luthra; Woodhaven Apartments; Citizens Bank; Cathleen Nash; Bank of America; Brian Moynihan; Amy Bidwell; Key Bank, N.A.; Henry L. Meyer, III; and Vice President of Security Key Bank (John Doe). Signed by Senior Judge Gary L. Sharpe on 9/26/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JAMES P. MHINA,
Plaintiff,

5:15-cv-327
(GLS/DEP)

v.
BETH VAN DOREN et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
James P. Mhina
Pro Se
P.O. Box 133
Syracuse, NY 13201
FOR THE DEFENDANTS:
Beth Van Doren
Onondaga County Department of Law
John H. Mulroy Civic Center
421 Montgomery Street, 10th Floor
Syracuse, NY 13202
Anthony Collavita and David Buske
City of Syracuse Corporation Counsel
233 East Washington Street
Room 300 City Hall
Syracuse, NY 13202
Woodhaven Apartments and
Vinod Luthra
Woods, Oviatt Law Firm
700 Crossroads Building

RONNIE WHITE, JR., ESQ.
KAREN ANN BLESKOSKI, ESQ.

AIMEE M. PAQUETTE, ESQ.

JOHN C. NUTTER, ESQ.

2 State Street
Rochester, NY 14614
Henry L. Meyer, III, Key Bank, NA,
and Key Bank VP of Security
Moran, Karamouzis Law Firm
265 Sunrise Highway, Suite 61
Rockville Centre, NY 11570

ANDREW P. KARAMOUZIS,
ESQ.

Cathleen Nash and Citizens Bank
Menter, Rudin Law Firm
308 Maltbie Street
Suite 200
Syracuse, NY 13204

MITCHELL J. KATZ, ESQ.

Brian Moynihan, Amy Bidwell,
and Bank of America
Wilson, Elser Law Firm
677 Broadway, 9th Floor
Albany, NY 12207-2996

MARCY E. SPRATT, ESQ.
PETER A. LAURICELLA, ESQ.
RICHARD A. BURGER, ESQ.

Jackson, Lewis P.C.
677 Broadway
Albany, NY 12207

BENJAMIN F. NEIDL, ESQ.

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se James Mhina commenced this action against thirteen
defendants — (1) Vinrod Luthra, the “C.E.O. President, [and] owner [of]
Woodhaven Apartments”; (2) Woodhaven Apartments, sued in its capacity
2

as a legal entity, (collectively, “Woodhaven defendants”); (3) Syracuse
Police Detective Anthony Collavita; (4) Syracuse Police Detective David
Buske; (5) Onondaga County Assistant District Attorney Beth Van Doren;
(6) Citizens Bank; (7) Cathleen H. Nash, C.E.O. and President of Citizens
Bank, (collectively, “Citizens Bank defendants”); (8) Bank of America; (9)
Brian Moynihan, C.E.O. and President of Bank of America; (10) Amy
Bidwell, Bank of America Branch Manager, (collectively, “Bank of America
defendants”); (11) Key Bank, N.A.; (12) Henry L. Meyer, III, C.E.O. of Key
Bank; and (13) Vice President of Security Key Bank (“John Doe”),
(collectively, “Key Bank defendants”) — alleging various civil rights
violations and state common law causes of action arising from his
prosecution that was subsequently overturned in 2013. (See generally 2d
Am. Compl., Dkt. No. 24.) Pending are motions to dismiss by the Citizen
Bank defendants, (Dkt No. 67), the Bank of America defendants, (Dkt. No.
85), the Woodhaven defendants, (Dkt. No. 87), and the Key Bank
defendants, (Dkt. No. 88). Plaintiff has also filed a motion for default
judgment. (Dkt. No. 98.) For the reasons that follow, defendants’ motions
are granted and plaintiff’s motion is denied. As such, cross claims by
Officers Collvita and Buske and Assistant District Attorney Van Doren for
3

indemnification or contribution against all moving defendants are likewise
dismissed. (Dkt. No. 46 ¶¶ 48-49; Dkt. No. 49 ¶¶ 78-79.)
II. Background
A.

Facts1
Plaintiff generally alleges that all defendants cooperated to file and

prosecute false criminal charges against him between 2006 and 2009.
(See generally 2d Am. Compl.) Plaintiff appears to have been arrested
and charged by the City of Syracuse Police Department for petit larceny,
attempted grand larceny, and possession of a forged instrument. (Id. at
10, 12-13.) Additionally, according to public records, plaintiff was charged
with falsifying business records and scheming to defraud. See People v.
Mhina, 110 A.D.3d 1445, 1446 (4th Dep’t 2013).2 In 2009, after a jury trial,
plaintiff was convicted of three counts of criminal possession of a forged
instrument in the second degree, two counts of falsifying business records

1

The facts are drawn from plaintiff’s second amended complaint and presented in the
light most favorable to him. Citations to this pleading are to the CM/ECF page numbers.
2

The court notes that the parties have provided with their motion papers the appellate
opinion from the underlying state criminal prosecution for the court to consider. (Dkt. No. 88,
Attach. 4.) The court may look to matters of public record when considering a motion to
dismiss for failure to state a claim. See Byrd v. City of New York, No. 04-1396-CV, 2005 WL
1349876, at *1 (2d Cir. June 8, 2005) (explaining that the court, on a motion to dismiss
pursuant to Rule 12(b)(6), may consider matters that are subject to judicial notice without
converting the motion to one for summary judgment).

4

in the first degree, and one count of scheme to defraud in the second
degree. See id. Plaintiff’s conviction was subsequently overturned on
appeal, and he was released after serving seven and one-half years in
prison. See id. at 1447; (2d Am. Compl. at 3.)
Specifically, plaintiff alleges that the Woodhaven defendants failed to
return a $1,700.00 check to him and instead turned it over to the Syracuse
Police Department. (2d Am. Compl. at 7.) He alleges that the Woodhaven
defendants were then coerced to file false charges against plaintiff and
testify falsely against him to the grand jury, resulting in his indictment. (Id.
at 4.) Plaintiff also alleges that he opened accounts in 2006 and 2007 with
Citizens Bank, Bank of America, and Key Bank in Onondaga County. (Id.
at 30, 37, 45.) After a short period of time, plaintiff claims that the banks
closed his accounts without cause. (Id. at 31, 38, 46.) Plaintiff alleges that
the banks and their named defendant employees were then coerced by
Detectives Buske and Collavita and Assistant District Attorney Van Doren
to file false charges and supply fraudulent evidence by testifying falsely or
providing false statements against plaintiff. (Id. at 30, 38, 47.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well
5

established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its prior opinion in Ellis v. Cohen &
Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010), abrogated on
other grounds by Altman v. J.C. Christensen & Assocs., Inc., 786 F.3d 191
(2d Cir. 2015).
IV. Discussion3
A.

State Action under 42 U.S.C. § 1983
Plaintiff generally alleges that the Woodhaven defendants, the

Citizens Bank defendants, the Bank of America defendants, and the Key
Bank defendants conspired with either Detectives Buske and Collavita or
Assistant District Attorney Van Doren to file criminal charges against him.
(2d Am. Compl. at 4, 30, 38, 47.) All of the moving defendants are private
entities or individuals who are not amenable to suit pursuant to section
1983 unless they acted under color of state law to deprive plaintiff of his
constitutional rights. See Ciambriello v. Cty. of Nassau, 292 F.3d 307, 323
(2d Cir. 2002). The court finds that plaintiff’s conclusory allegations are

3

The court construes plaintiff’s “Motion to Dismiss Defendants[’] Motions to Dismiss,”
(Dkt. No. 70), as an additional response to the moving defendants’ motions to dismiss. The
court has considered plaintiff’s arguments and, for the reasons outlined in Part IV.A-B, finds
them unavailing.

6

insufficient to state a claim of state action by any of the moving defendants.

In order to state a viable section 1983 conspiracy claim, a plaintiff
must allege: “(1) an agreement between a state actor and a private party;
(2) to act in concert to inflict an unconstitutional injury; and (3) an overt act
done in furtherance of that goal causing damages.” Id. at 324-25. A
plaintiff’s allegations must be “‘amplified by specific instances of
misconduct.’” Id. at 325 (quoting Dwares v. City of New York, 985 F.2d 94,
100 (2d Cir. 1993)). “[M]ere[] conclusory allegation[s] that a private entity
[or individual] acted in concert with a state actor does not suffice to state a
[section] 1983 claim against the private entity.” Id. at 324. Rather, a
plaintiff must show “a sufficiently close nexus between the [s]tate and the
challenged action of the [private] entity so that the action of the latter may
be fairly treated as that of the [s]tate itself.” Jackson v. Metro. Edison Co.,
419 U.S. 345, 351 (1974).
Here, plaintiff’s factual allegations have not adequately plead state
action on the part of the moving defendants. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief
7

that is plausible on its face.” (internal quotation marks and citation
omitted)). First, plaintiff alleges that some of the individual moving
defendants testified falsely against him before the grand jury or at his trial.4
It is well-established that a private individual who testifies falsely does not
do so under the color of law. See Gordon v. City of New York, No. 10-CV5148, 2012 WL 1068023, at *12 (E.D.N.Y. Mar. 29, 2012) (“‘It is beyond
question that, when a private party gives testimony in open court in a
criminal trial, that act is not performed under the color of law.’” (quoting
Briscoe v. LaHue, 460 U.S. 325, 329 (1983))). Thus, this testimony cannot
be the basis of a section 1983 claim.
Second, plaintiff alleges that some moving defendants filed false
criminal charges against him or fraudulently aided the prosecution’s
investigation.5 For similar reasons, this conduct initiated by private
individuals does not constitute state action. See Pacherille v. Cty. of

4

Specifically, plaintiff alleges that Luthra, the C.E.O. of Woodhaven Apartments, gave
“false statements that made the Onondaga grand jury believe[] these false statements and
vote[] to indict plaintiff.” (2d Am. Compl. at 4.) Additionally, plaintiff alleges that Bidwell, a
Bank of America branch manager, “gave a false statement to the grand jury,” and later “falsely
testified before plaintiff[’]s . . . trial.” (Id. at 39.)
5

Plaintiff alleges that the Key Bank defendants “lent a substantial hand” in his criminal
prosecution by giving “false and fraudulent” statements. (2d Am. Compl. at 47.) Further,
plaintiff claims that the Citizens Bank defendants “decided to bring false malicious charges of
possession of [a] forged instrument.” (Id. at 31.)

8

Otsego, No. 3:13-CV-1282, 2014 WL 11515848, at *5 (N.D.N.Y. Nov. 20,
2014) (“[C]ase law in this Circuit is well-established that the provision of
information to a police officer — even if that information is false or results
in the officer taking affirmative action — is insufficient to constitute ‘joint
action’ with state actors for the purposes of [section] 1983.” (internal
quotation marks and citation omitted)); Vazquez v. Combs, No. 04 Civ.
4189, 2004 WL 2404224, at *4 (S.D.N.Y. Oct. 22, 2004) (“[M]erely filing a
complaint with the police, reporting a crime, requesting criminal
investigation of a person, or seeking a restraining order, even if the
complaint or report is deliberately false, does not give rise to a claim
against the complainant for a civil rights violation.”).
Finally, plaintiff has also failed to allege facts giving rise to a
conspiracy. Plaintiff claims that the moving defendants “were coerced” by
Detectives Buske and Collavita or Assistant District Attorney Van Doren to
aid in his criminal investigation and prosecution. (2d Am. Compl. at 4, 30,
38, 47.) These allegations alone do not support a conspiracy claim. See
Ciambriello, 292 F.3d at 324. Notably absent from plaintiff’s complaint are
specific facts plausibly indicating an agreement between the detectives or
the prosecutor and the moving defendants to violate plaintiff’s
9

constitutional rights. See Jae Soog Lee v. Law Office of Kim & Bae, PC,
530 F. App’x 9, 10 (2d Cir. 2013) (finding no conspiracy claim where
plaintiff did not allege an agreement). Plaintiff has not shown a “‘meeting
of the minds’” or “‘understanding’” between the state actor defendants and
the moving defendants sufficient to support a claim of conspiracy. McGee
v. Dunn, 09 Civ. 6098, 2015 WL 9077386, at *5 (S.D.N.Y. Dec. 16, 2015)
(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 158 (1970)). Rather,
plaintiff’s complaint “contain[s] only conclusory, vague, or general
allegations that the [moving] defendants have engaged in a conspiracy to
deprive [him] of his constitutional rights” and, thus, those claims “are
properly dismissed.” Ciambriello, 292 F.3d at 325 (internal quotation
marks and citation omitted).
B.

State Law Claims
In addition to plaintiff’s federal constitutional claims, it appears that

he alleges several claims arising under New York state law against the
moving defendants. Specifically, plaintiff alleges a conversion claim
against the Woodhaven defendants and breach of fiduciary duty claims
against the Citizen Bank, Key Bank, and Bank of America defendants. (2d
Am. Compl. at 4, 30, 37, 46.) Having dismissed all of the federal claims
10

against the moving defendants, the court declines to exercise
supplemental jurisdiction of plaintiff’s state law claims.
“In the absence of original federal jurisdiction, the decision of whether
to exercise jurisdiction over pendent state law claims is within the court’s
discretion.” Butler v. LaBarge, No. 9:09-cv-1106, 2010 WL 3907258, at *3
(N.D.N.Y. Sept. 30, 2010) (citing Kolari v. N.Y. Presbyterian Hosp., 455
F.3d 118, 121-22 (2d Cir. 2006)). Even where federal claims against other
defendants remain, courts have declined to exercise supplemental
jurisdiction over state law claims against defendants for whom all federal
claims have been dismissed. See Melvin v. Cty of Westchester, No. 14CV-2995, 2016 WL 1254394, at *18-19 (S.D.N.Y. Mar. 29, 2016);
Germano v. Dzurenda, No. 3:09cv1316, 2011 WL 1214435, at *20 (D.
Conn. Mar. 28, 2011). The court finds that, as here, where all federal
claims against the moving defendants have been eliminated before trial,
the balance of factors in deciding whether to exercise jurisdiction over
these state law claims leans towards dismissal. See Kolari, 455 F.3d at
122. Accordingly, the court declines to exercise jurisdiction over plaintiff’s
state law claims against the moving defendants and they are dismissed

11

from this action.6
C.

Motion for Default Judgment
Plaintiff has moved for default judgment against all defendants. (Dkt.

No. 98.) This motion, which was filed without a docketed Clerk’s entry of
default, is procedurally improper and baseless and, therefore, is denied.
See Fed. R. Civ. P. 55(a); N.D.N.Y. L.R. 55.1; see generally Robertson v.
Doe, No. 05-Civ-7046, 2008 WL 2519894, at *3 (S.D.N.Y. June 19, 2008),
aff’d sub nom. Robertson v. Dowbenko, 443 F. App’x 659 (2d Cir. 2011).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Citizens Bank defendants’ motion to dismiss (Dkt.
No. 67) is GRANTED and all claims alleged against them are DISMISSED;
and it is further
ORDERED that Bank of America defendants’ motion to dismiss (Dkt.
No. 85) is GRANTED and all claims alleged against them are DISMISSED;
and it is further
ORDERED that Woodhaven defendants’ motion to dismiss (Dkt.
6

Additionally, the court also finds that granting plaintiff leave to amend for a third time
will not cure his pleading deficiencies against the private entity and individual defendants. See
generally Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).

12

No. 87) is GRANTED and all claims alleged against them are DISMISSED;
and it is further
ORDERED that Key Bank defendants’ motion to dismiss (Dkt.
No. 88) is GRANTED and all claims alleged against them are DISMISSED;
and it is further
ORDERED that plaintiff’s motion for default judgment (Dkt. No. 98) is
DENIED; and it is further
ORDERED that the cross claims by Officers Collvita and Buske and
Assistant District Attorney Van Doren for indemnification or contribution
(Dkt. No. 46 ¶¶ 48-49; Dkt. No. 49 ¶¶ 78-79) against all moving defendants
are DISMISSED; and it is further
ORDERED that the Clerk is directed to terminate the following
defendants from this action: Vinrod Luthra; Woodhaven Apartments;
Citizens Bank; Cathleen Nash; Bank of America; Brian Moynihan; Amy
Bidwell; Key Bank, N.A.; Henry L. Meyer, III; and Vice President of Security
Key Bank (“John Doe”); and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

13

IT IS SO ORDERED.
September 26, 2016
Albany, New York

14