Dow et al v. M & T Bank et al
DECISION & ORDER that the document filed by pltfs as the "amended complaint" (Dkt. No. 14) is STRICKEN as not in compliance with Judge Hurd's January 30, 2018 Order, and thus, the action is still DISMISSED IN ITS ENTIRETY in accordance with Judge Hurd's Order and for failure to file an amended complaint. Signed by US Magistrate Judge Andrew T. Baxter on 3/9/2018. (Copy served upon William G. Schisler, Sr. and Annette M. Schisler via regular and certified mail on 3/9/2018)(see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ANNETTE M. SCHISLER,
WILLIAM SCHISLER, SR.,1
-v.M & T BANK, et al.,
WILLIAM G. SCHISLER, SR, Plaintiff pro se
ANNETTE SCHISLER, Plaintiff pro se
ANDREW T. BAXTER, United States Magistrate Judge
DECISION and ORDER
The Clerk has sent to the court for review what Mr. Schisler told the Clerk is the
“amended complaint,” filed by plaintiffs in this action pursuant to Judge David N.
Hurd’s order dated January 30, 2018. (Dkt. Nos. 13, 14). Judge Hurd’s January 30,
2018 order adopted the Order and Report-Recommendation of Magistrate Judge
Therese Dancks, which recommended dismissing plaintiff’s action without prejudice to
filing an amended complaint. (Dkt. No. 5). Magistrate Judge Dancks granted plaintiffs’
motion to proceed in forma pauperis (“IFP”) for purposes of initial review only, and
this court will do the same for purposes of reviewing the amended complaint.
In addition to determining whether plaintiffs meet the financial criteria to
proceed IFP, the court must also consider the sufficiency of the allegations set forth in
The court is aware that plaintiffs got married after they filed the initial complaint in this
action. They signed their amended complaint “Annette Schisler” and “William Schisler, Sr.” The
Clerk is directed to change the caption accordingly.
the amended complaint in light of 28 U.S.C. § 1915, which provides that the court shall
dismiss the case at any time if the court determines that the action is (i) 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
In determining whether an action is frivolous, the court must consider whether
the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of
court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S.
at 327; Harkins v. Eldridge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has
a duty to show liberality toward pro se litigants, and must use extreme caution in
ordering sua sponte dismissal of a pro se complaint before the adverse party has been
served and has had an opportunity to respond, the court still has a responsibility to
determine that a claim is not frivolous before permitting a plaintiff to proceed.
Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)
(finding that a district court may dismiss a frivolous complaint sua sponte even when
plaintiff has paid the filing fee).
To survive dismissal for failure to state a claim, the complaint must contain
sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atl. Corp.,
550 U.S. at 555). The court will now turn to a consideration of the plaintiffs’ amended
complaint under the above standards.
In her Order and Report-Recommendation, Magistrate Judge Dancks outlined the
facts as stated in plaintiffs’ original complaint. (Dkt. No. 5 at 4-5). Briefly, plaintiffs
are suing M & T Bank (“M & T”), Bay View Loan Servicing, LLC (“Bay View”), and
Emery Law (“Emery”) in conjunction with the mortgage on the Schisler’s home.
Plaintiffs claimed that their mortgage was paid monthly until June 3, 2014, when
“someone” at M & T Bank accepted plaintiffs’ money without recording the payment.
(Dkt. No. 5 at 4). Plaintiffs state that they stopped paying the mortgage, while they
waited for defendants to “straighten” the matter out on “their side.” (Id.) Plaintiffs later
became aware that M & T Bank was selling their property. In a footnote, Magistrate
Judge Dancks stated that, although Emery Law was named as a defendant, there were
no “specific allegations pertaining to Emery Law.” (Dkt. No. 5 at 12).
Plaintiffs alleged: (1) “void of agreement undue care for hanicap [sic] disabled
hearing impaired people[;]” (2) “breach of contract[;]” and (3) “failure to properly
notify in due time of lapse in payment.” (Dkt. No. 5 at 4) (citing Complaint (“Compl.”)
at ¶ 5). As relief, Plaintiffs sought $30.5 million in damages for pain, suffering,
emotional distress, and “undue stress to a handicap autistic child and cancer patient.”
(Id. at 4-5) (citing Compl. ¶ 6)).
Judge Dancks determined that the court did not have jurisdiction to hear
plaintiffs’ claims under any possible applicable statutes. (Dkt. No. 5 at 6-13). Judge
Dancks, thus, recommended dismissal with leave to amend. (Dkt. No. 5 at 13).
Although plaintiffs filed objections to the Order and Report-Recommendation, the
Honorable David N. Hurd adopted the recommendation in its entirety.2 (Dkt. Nos. 6, 7,
13). Judge Hurd gave plaintiffs thirty (30) days from the date of his order to file their
amended complaint. (Dkt. No. 13). On March 5, 2018, plaintiffs filed the document
that is before me, which plaintiffs direct the Clerk to file as the Amended Complaint.
(Dkt. No. 14).
Unfortunately, the document that plaintiffs filed is not an amended complaint. It
is a letter from plaintiffs in which they continue to disagree with the court’s dismissal
of their action. (Dkt. No. 14 at 1). The letter is addressed to “Judge Baxter and others.”
(Id.) The letter begins by stating that the Schislers “here by [sic] do not agree with your
decision to dismiss our case in its entirety.” (Id.) Plaintiffs then re-state their problems
with M & T and their mortgage. In the letter, plaintiffs now include additional facts
regarding “Emery Law.” They state that “Emery Law”3 called them every day until
June 14, 2014, “when we had no choice,” to tell plaintiffs that M & T was selling their
home. (Dkt. No. 14 at 1-2). Plaintiffs also state that Emery Law told them a lie and
somehow defrauded them, and they still lost their home. (Id. at 2). Plaintiffs allege that
the Attorney General and the “Supreme Court”4 told plaintiffs that what defendants did
was “totally wrong,” and that we should not dismiss their case simply because they are
On May 22, 2017, Magistrate Judge Dancks issued an Order of Recusal, which ordered the
Clerk to reassign the action to another Magistrate Judge. (Dkt. No. 11). On May 23, 2017, the case
was reassigned to me.
This court can only assume that “Emery Law” is a law firm, and an attorney or attorneys from
that firm called plaintiffs to speak with them about their mortgage. Plaintiffs listed “Emery Law” as a
defendant in the original complaint, but as Emery Law's “Official Position,” plaintiffs have written
“Modification Lawyer.” (Dkt. No. 1, ¶ 3(c)).
The court assumes that plaintiffs are referring to New York State Supreme Court, and perhaps
the Supreme Court’s action related to the foreclosure proceeding.
Plaintiffs have also filed additional documents in an effort to show that they are
disabled or have medical problems. This court does not question plaintiffs’ medical
issues. However, the fact that plaintiffs are disabled, in itself, does not confer
jurisdiction in federal court as Judge Dancks explained in her recommendation.
Plaintiffs have not filed an amended complaint. Rather, they have submitted further
argument that the court should not have dismissed their original complaint. I have no
ability to change Judge Hurd’s ruling on plaintiff’s original complaint, and without
more, I am bound by what Judge Dancks and Judge Hurd decided.
Although plaintiffs in a letter have now stated more facts regarding “Emery
Law,” these facts are completely conclusory and have not been alleged in an amended
pleading. Assuming that an attorney from Emery Law, who may have been involved in
attempting to modify the plaintiff's mortgage called plaintiffs, they have not stated how
the attorney lied to them or defrauded them. In any event, as Judge Dancks found,
plaintiffs have no diversity jurisdiction in this case, and they would not be able to sue
Emery Law in this court for any state law claims. (Dkt. No. 5 at 10-13). This court
makes no findings regarding the merits of plaintiffs’ claims.5 The court finds only that
there is no jurisdiction in this court to address plaintiffs’ claims.
The court does not question that plaintiffs were devastated by the loss of their home. The
court also does not question plaintiffs’ claim that they were told that defendants may have erred in their
treatment of plaintiff. The court did not dismiss this case because plaintiffs are not lawyers. The court
dismissed the case for lack of jurisdiction. However, even if plaintiffs were correct, as stated by Judge
Dancks, the Federal Courts are of limited jurisdiction. (See Dkt. No. 5 at 5). Judge Dancks quoted the
Supreme Court, holding that “[i]t is a fundamental precept that federal courts are courts of limited
jurisdiction.” (Id. quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978)) (internal
quotation marks omitted). There are some claims that the federal court cannot determine regardless of
whether the defendants would or would not be liable.
Plaintiffs have not filed a proper amended complaint within the time period given
to them by Judge Hurd. In their letter, plaintiffs are essentially asking the court to
reconsider its decision to dismiss plaintiffs’ case without prejudice. However, I cannot
change Judge Hurd’s order. Plaintiffs have not submitted an amended complaint for the
court’s review, notwithstanding their attempt to have the Clerk file the document as an
WHEREFORE, based on the findings above, it is
ORDERED, that the document filed by plaintiffs as the “amended complaint”
(Dkt. No. 14) is STRICKEN as not in compliance with Judge Hurd’s January 30, 2018
Order, and thus, the action is still DISMISSED IN ITS ENTIRETY in accordance
with Judge Hurd’s order and for failure to file an amended complaint.
Dated: March 9, 2018
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