Riveredge Owners' Association, et al et al v. Town of Cortlandt, Inc. et al
MEMORANDUM DECISION AND ORDER. Having reviewed Magistrate Judge Cott's Report and Recommendation, this Court overrules Plaintiffs' objections and adopts the Report in full. Defendants' motion is GRANTED, and this case is remanded to state court. The Clerk of the Court is directed to close this case. So ordered. Re 55 Report and Recommendation. (Signed by Judge George B. Daniels on 12/21/2016) (rjm).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RIVEREDGE OWNERS' ASSOCIATION and
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-againstTOWN OF CORTLANDT, INC., ET AL.,
16 Civ. 5665 (GBD) (JLC)
GEORGE B. DANIELS, United States District Judge:
Defendant 1 Town of Cortlandt ("the Town") initially filed this action against Riveredge
Owners' Association ("ROA") and Jose Vicente, among others, in the Town of Cortlandt Justice
Court, County of Westchester. On August 4, 2016, the ROA and Jose Vincente, prose, (together,
"Plaintiffs") removed this action to federal court. The Town moves to remand this action to state
court. (ECF No. 15; Town's Mem. in Supp. of Mot. to Remand, ECF No. 18.)
This matter was referred to Magistrate Judge James L. Cott on July 21, 2016 pursuant to
28 U.S.C. § 636(b)(l)(C) and Federal Rule of Civil Procedure 72(b). 2 (ECF No. 3.) Before this
Court is Magistrate Judge Cott's Report and Recommendation, ("Report," ECF No. 55),
recommending that this Court remand the action back to the Justice Court for lack of standing and
For consistency, this Order follows the naming conventions of the Report: "While it is obviously improper
for a [state court] defendant to remove a case and then recast himself as a plaintiff, for ease of reference the
Court will refer to Vicente and the [ROA] as Plaintiffs .... " (Report, at 2 n.4.)
Plaintiffs object to the Report wholesale because "the Plaintiff was not noticed, nor did he consent to a
magistrate judge's hearing and determination of this civil matter pursuant to 28 U.S.C. [sic] 636( c)." (Pis.'
Objections to Report ("Pis.' Objs"), ECF No. 58, at 6.) As an initial matter, this objection is meritless
because a district court has clear statutory authority to refer dispositive pretrial matters to a magistrate judge
for a Report and Recommendation without the parties' consent-such findings in a Report and
Recommendation do not constitute a final determination of a civil action. See 28 U.S.C. § 636(b)(l)(C).
failure to allege federal question jurisdiction. 3 (Id. at 18.) In his Report, Magistrate Judge Cott
advised the parties that failure to file timely objections to the Report would constitute a waiver of
those objections on appeal. (Id. at 19); see also 28 U.S.C. § 636(b)(l)(C); Fed. R. Civ. P. 72(b).
This Court overrules Plaintiffs' objections and adopts Magistrate Judge Catt's
recommendation. The Town's motion to remand to state court is GRANTED.
I. LEGAL STANDARD
This Court may accept, reject or modify, in whole or
part, the findings and
recommendations set forth within the Report. See 28 U.S.C. § 636(b)(l)(C). When no objections
to a Report are made, the Court may adopt the Report if "there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (citation
When there are objections to the Report, this Court must make a de novo determination as
to the objected-to portions of the Report. 28 U.S.C. § 636(b)(l)(C); see also Rivera v. Barnhart,
423 F. Supp. 2d 271, 273 (S.D.N.Y. 2006). The district judge may also receive further evidence
or recommit the matter to the magistrate judge with instructions. See Fed. R. Civ. P. 72 (b ); 28
U.S.C. § 636(b)(l)(C). The Court need not conduct a de nova hearing on the matter, as it is
sufficient that this Court "arrive at its own, independent conclusions" regarding those portions to
which objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985)
(quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)); see United States v. Raddatz,
447 U.S. 667, 675-76 (1980).
The relevant procedural and factual background is set forth in greater detail in the Report and is
Plaintiffs filed timely objections to the Report. (See Pls.' Obj.) Defendants filed a timely
response to Plaintiffs' objections. (Defs.' Resp. to Pls.' Obj. ("Defs.' Resp."), ECF No. 56.)
The pleadings of parties appearing pro se are generally accorded leniency and should be
construed "to raise the strongest arguments that they suggest." See Belpasso v. Port Auth. of N. Y.
& NJ, 400 F. App'x 600, 601 (2d Cir. 2010) (quoting McPherson v. Coombe, 174 F.3d 276, 280
(2d Cir. 1999)).
II. PLAINTIFFS LACK STANDING
Plaintiffs object to the Report's finding that neither the ROA nor Vicente have standing to
proceed pro se because artificial entities may not proceed pro se, (Report, at 6), and because
Plaintiff Vicente has not articulated any harm to himself, (id., at 7.). (See Pls.' Obj., at 7.) Without
citing any legal authority and relying only upon his own assertions, Plaintiff Vicente claims for
the first time that he "operates the [ROA] as a Sole Proprietor, and, therefore the alleged entity is
not a corporation requiring representation." (Id. at 6.)
Plaintiffs' objections asserting that they have standing have no legal basis. First, as the
Report properly found, Plaintiff Vicente has not articulated any harm to himself, but only that
Defendants' actions have harmed the ROA. (Report, at 7.) Plaintiff Vicente may not sidestep the
injury-in-fact requirement of Article III standing. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). Second, as the Report properly held, an artificial entity, such as the ROA,
must be represented by an attorney. (Report, at 6 (citing 28 U.S.C. § 1654 and, inter alia, Lattanzio
v. COMTA, 481 F.3d 13 7, 139 (2d Cir. 2007). It is axiomatic that the only forms of appearance
on behalf of a party to a lawsuit are "that by an attorney admitted to the practice of law by a
governmental regulatory body and that by a person representing himself." Eagle As.mes. v. Bank
of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991). "The statute does not permit unlicensed laymen
to represent anyone else other than themselves," and this prohibition extends to "all artificial
entities," such as the ROA and even ifthe ROA is not a corporation. Lattanzio, 481 F.3d, at 139
(citing Rowlandv. Cal. Men's Colony, Unit II Men's Advisory Coun., 506 U.S. 194, 202 (1993)).
Furthermore, this Court need not consider Plaintiff Vicente's new assertion that he operates the
ROA as a "sole proprietor," which he has first raised in objection to the Report and is not supported
by any allegations of fact. See Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) (upholding
exercise of the district court's discretion in refusing to allow supplementation of the record upon
the district court's de nova review of a report and recommendation).
This new assertion is
contradicted by Plaintiffs' own submissions on the record that the ROA consists of at least twenty
members. (See Report, at 7 (citing Pls.' Opp'n to Mot. to Remand, ECF No. 28, at 33-35).)
Accordingly, the Report properly found that both the ROA and Plaintiff Vicente lack
standing, and therefore, the authority to remove this case to federal court. 4 (Id. at 7-8.)
III. PLAINTIFFS FAIL TO ALLEGE A FEDERAL CAUSE OF ACTION ON THE FACE
OF THE RECOVERY PETITION
Plaintiffs also object to the Report's finding that this Court does not have subject-matter
jurisdiction over this action, (id., at 8-18). (See Pis.' Obj., at 6.) Plaintiffs appear to argue, without
further specification, that the Town has violated civil rights and acted unethically "in the attempted
taking of the subject property." (Id.) However, Plaintiff Vicente also concedes that "Real Property
Possession is typically a State Court issue [sic]." (Id.)
Despite construing Plaintiff Vicente's arguments liberally, the Report properly found that
the Town's state court recovery petition fails to affirmatively present a federal question. (Report,
Plaintiffs also appear to object wholesale to the Report because it "appears to bias[ ed] and prejudicial to
Plaintiff' in favor of Defendants' Motion to Dismiss, (ECF No. 29). (Pis.' Obj., at 6-7.) There is no factual
basis for this objection, as the Report clearly stated that it does not address Defendants' Motion to Dismiss
because the Report recommends a remand. (Report, at I n. I.)
at 10 (citing Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 46 U.S. 1,
10 (1983) (internal citations and quotation marks omitted) and Beneficial Nat 'l Bank v. Anderson,
539 U.S. 1, 6 (2003) (holding that removal requires the complaint to affirmatively allege a federal
Defendant Town of Cortlandt's underlying state recovery petition only brings claims
under the New York State Real Property Actions and Proceedings Laws ("RP APL") for possession
of the subject property and removal of those living on the property. (Id., at 10-11 (citing Recovery
Petition, ECF No. 1, at 45-49).) While Vicente attempts to implicate the Takings Clause of the
Fifth Amendment of the United States Constitution as a defense to the state court recovery petition,
such a federal claim does not appear on the face of the recovery petition nor is it raised by the
Town's state law claims. (Id., at 11-13.)
Therefore, the Report properly concludes that Plaintiffs fail to establish federal question
jurisdiction appears on the face of or is necessarily raised by the Town's recovery petition.
Accordingly, this Court does not have subject-matter jurisdiction over this action. Defendants'
motion to remand is granted. 5 (Id. at 15).
Having reviewed Magistrate Judge Cott's Report and Recommendation, this Court
overrules Plaintiffs' objections and adopts the Report in full. Defendants' motion is GRANTED,
and this case is remanded to state court. 6
The Report also properly found as an independent reason for remand that removal was improper because
not all respondents in the state court action consented to removal of the case to federal court. (Report, at
14.) Plaintiffs do not explicitly object to this finding.
On October 12, 2016, the Town of Cortlandt informed Magistrate Judge Cott that it had re-filed and
noticed seventeen actions against individual members of the ROA in the Town of Cortlandt Justice Court,
but not the ROA or Vicente due to the pendency of this action. (ECF No. 51).
After Magistrate Judge Cott issued the Report on November 1, 2016, five individual Respondents
improperly removed the individual recovery petitions against them to this Court, but only reference the
The Clerk of the Court is directed to close this case.
Dated: New York, New York
December 21, 2016
, ·4'.A ~-
recovery pet1t1on underlying this action. See Sebok v. Town of Cortlandt, Inc., et al., l 6-CV-8488;
Moynihan v, Town of Cortlandt, Inc., et al., 16-CV-8489; Lane v. Town of Cortlandt, Inc., et al., 16-CV8491; Bonavita v. Town of Cortlandt, Inc., et al., l 6-CV-8492; Zhingri v. Town of Cortlandt, Inc., et al.,
On December 16, 2016, two more individuals improperly removed their individual actions to this
Court. See Town of Cortlandt v. Garvey, 16-CV-9674; Town of Cortlandt v. Calley, 16-CV-9675. These
cases reference the individual recovery petitions filed in the Justice Court of the Town of Cortlandt.
This Court accepted these cases as related solely for the purpose of remand. Upon this Court's
review, the underlying individual recovery petitions for each of these additional seven actions involve New
York State Real Property Actions and Proceedings Laws ("RP APL") for possession of the subject property
and removal of those living on the property. These cases do not allege or raise a federal question. The laterremoved individual cases are also therefore remanded to the Justice Court of the Town of Cortlandt.
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