Vitucci et al v. Radparvar et al

Filing 5

ORDER OF DISMISSAL: The Court dismisses this action. The Court dismisses Plaintiff Nicholas Wayne Vituccis claims that he asserts on behalf of the Estate of Jerry Vitucci as well as Donika Mejtoja without prejudice. The Court dismisses Plaintiff Nicholas Wayne Vituccis own claims without prejudice for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). Plaintiff Nicholas Wayne Vitucci has consented to electronic service of court documents. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Lorna G. Schofield on 9/7/2021) (tg)

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 1 of 9

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NICHOLAS WAYNE VITUCCI, THE
ESTATE OF JERRY VITUCCI AKA
GEROLOMO VITUCCI (including his
successors and assigns), DONIKA MEJTOJA,
Plaintiffs,
-against-

21 Civ. 6657 (LGS)
ORDER OF DISMISSAL

HOOSHMAND RADPARVAR AKA HOSHI
RAD; MEHRAK RADPARVAR, MEHRAK
LLC, CARLOS GONZALES, ESQ.,
Defendants.
LORNA G. SCHOFIELD, United States District Judge:
Plaintiff Nicholas Wayne Vitucci, who appears pro se, asserts his own claims, as well as
claims on behalf of the estate of his deceased father (“the Estate”), Gerolomo Vitucci (“Jerry
Vitucci”), and Donika Mejtoja, who appears to be Jerry Vitucci’s daughter and Plaintiff Nicholas
Wayne Vitucci’s sister.1 Plaintiff purports to assert claims under the Court’s federal-question
jurisdiction. He sues: (1) Hooshmand Radparvar (“Hoshi Rad”); (2) Mehrak Radparvar;
(3) Mehrak LLC; and (4) Carlos Gonzales, Esq. In addition to damages, Plaintiff asks this Court
to: (1) return ownership of half of the real property located at 2315 Demeyer Street, Bronx, New
York (“the property”), to him and Mejtoja as the heirs of Jerry Vitucci; (2) dissolve Mehrak LLC,
the current owner of the property; and (3) order that “the deed [for the property] be placed in the
name of both [the Vitucci and Radparvar] families until [the property] is sold and the funds
equally distributed between the families.”

1

Plaintiff Nicholas Wayne Vitucci is the only plaintiff to have signed the complaint. The
Court therefore understands that Plaintiff Nicholas Wayne Vitucci is asserting claims in this
action on behalf of the Estate as well as Mejtoja. The Court will therefore refer to Plaintiff
Nicholas Wayne Vitucci as the sole plaintiff in this action.

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 2 of 9

Plaintiff has paid the relevant fees to bring this action. For the reasons set forth below,
the Court dismisses this action.
I.

STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the

relevant fees if the Court lacks subject-matter jurisdiction, see Fed. R. Civ. P. 12(h)(3); Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999); DeVito Verdi, Inc. v. Legal Sea Foods, Inc.
21 Civ. 1007, 2021 WL 1600088 (S.D.N.Y. 2021). The Court is obliged, however, to construe
pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to
raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original).
II.

BACKGROUND
Plaintiff asserts that the grounds for the Court’s federal-question jurisdiction to consider

this action are: “Real Estate Fraud, Fraud aka Foreclosure rescue scheme, Loan modification
scheme, Embezzlement of Rents, [and] falsified court information regarding heirs to property.”
Plaintiff alleges the following:
Hoshi Rad invested 200,000 with a promissory note in 2005 for a partial
investment in [Plaintiff’s] family’s property [at] 2315 Demeyer Street; Mr. Rad
used this note to blackmail [Jerry Vitucci] into giving him half ownership title in
this property. . . . Rad [u]sed the promissory note to [also] blackmail [Jerry
Vitucci] by stopping the construction loan we were about to close on to continue
to build . . . the second home[,] 2315B Demeyer Street. (The property . . . was
subdivided prior to Mr. Rad being placed on the deed)[.] Mr. Rad continued to
interfere with the new building construction (2315B) and caused unnecessary
havoc along with his daughter[,] Mehrak Radparvar[,] resulting in over a 2-year
build time (extra year).
Rad and Radparvar prevented Plaintiff from entering the property by attacking him and having
him arrested. Plaintiff was then falsely arrested eight additional times “due to violation[s] of

2

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 3 of 9

orders of protection.” But “after 3 years in criminal court, [Plaintiff] was found innocent of all
charges and received an apology from the 49th [P]recinct for [the] false arrests.”
An agreement reached by arbitration allowed Rad “to collect rents until he could buy [the
property] outright with his own mortgage.” During the effective period of the arbitrated
agreement, Jerry Vitucci allowed Rad “to collect rents and [he] only needed to pay [Jerry
Vitucci’s] mortgage.” But Rad “kept every cent from March 2010 until fraud occurred and the
mortgage was removed in September 2019. The amount of funds collected for rents exceed
[$]800,000.00. . . . [The] [h]arm is [the] loss of [Jerry] Vitucci’s credit standing and not being
able to refinance the construction loan.”
As a result of a court proceeding that took place in September 2019, Rad and Radparvar
were granted full ownership of the property. On the same date as that proceeding, Carlos
Gonzales, an attorney representing Rad and Radparvar, in another court proceeding, persuaded a
judge to take Jerry Vitucci, who was then deceased, as well as his surviving children, “off the
deed.” Plaintiff alleges that this was “fraud…[and] nothing more th[a]n a deliberate attempt to
have his clients own [the] property by illegally obtaining [ownership].” Neither Plaintiff nor
Mejtoja were informed of Gonzales’s appearance before that judge. Gonzales’s “malfeasance
caused [Plaintiff’s] family home to be illegally obtained by” Rad and Radparvar.
After the court granted ownership of the property to Rad and Radparvar, they created
Mehrak LLC, and transferred ownership of the property to Mehrak LLC. This was done “[t]o
safeguard it from any lawsuits that would come after the facts of this fraud were found out.
Harm is loss of [the] property by illegal means.”

3

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 4 of 9

III.

DISCUSSION
A.

Plaintiff’s Claims on Behalf of Mejtoja and the Estate

Plaintiff, proceeding pro se, brings claims on his behalf, as well as on behalf of Mejtoja
and the Estate. His claims on behalf of Mejtoja and the Estate are dismissed because he is
proceeding pro se.
The provision governing appearances in federal court, 28 U.S.C. § 1654, allows two
types of representation: “that by an attorney admitted to the practice of law by a governmental
regulatory body, and that by a person representing himself.” Eagle Assocs. v. Bank of Montreal,
926 F.2d 1305, 1308 (2d Cir. 1991) (internal quotation marks and citation omitted). And
“because pro se means to appear for one’s self, a person may not appear on another person’s
behalf in the other’s cause. A person must be litigating an interest personal to him.” Iannaccone
v. Law, 142 F.3d 553, 558 (2d Cir. 1998). In circumstances “whe[re] the administrator and sole
beneficiary of an estate with no creditors seeks to appear pro se on behalf of the estate, []he is in
fact appearing solely on [his] own behalf, because []he is the only party affected by the
disposition of the suit.” Pappas v. Philip Morris, Inc., 915 F.3d 889, 893 (2d Cir. 2019) (citing
Guest v. Hansen, 603 F.3d 15, 21 (2d Cir. 2010)). This is because “the assignment of the sole
beneficiary’s claims to a paper entity -- the estate -- rather than to the beneficiary h[im]self, is
only a legal fiction.” Id. (citing Guest, 603 F.3d at 21). But “[w]here there are other
beneficiaries, ‘an action cannot be described as the litigant’s own, because the personal interests
of the estate, other survivors, and possible creditors . . . will be affected by the outcome of the
proceedings.’” Guest, 603 F.3d at 20 (quoting Iannaccone, 142 F.3d at 559).
Plaintiff, who does not allege that he is an attorney, cannot assert claims on behalf of
Mejtoja. And because he does not allege that he is the sole beneficiary of the Estate, Plaintiff
cannot assert claims on behalf of the Estate. Plaintiff may only assert claims on behalf of
4

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 5 of 9

himself. Accordingly, the Court dismisses Plaintiff’s claims that he asserts on behalf of Mejtoja
and the Estate without prejudice. To be sure, these claims would also be dismissed for lack of
subject-matter jurisdiction, which is discussed below.
B.

Subject-matter Jurisdiction

Plaintiff’s claims are dismissed for lack of subject-matter jurisdiction. The subject-matter
jurisdiction of the federal district courts is limited and is set forth generally in 28 U.S.C. § 1331
and § 1332. Under these statutes, a federal district court’s jurisdiction is available only when a
“federal question” is presented, see 28 U.S.C. § 1331, or, when a plaintiff asserts claims under
state law under the Court’s diversity jurisdiction, when the plaintiff and the defendants are
citizens of different states and the amount in controversy exceeds the sum or value of $75,000,
see 28 U.S.C. § 1332.
“‘[I]t is common ground that in our federal system of limited jurisdiction any party or the
court sua sponte, at any stage of the proceedings, may raise the question of whether the court has
subject matter jurisdiction.’” United Food & Commercial Workers Union, Local 919, AFL-CIO
v. CenterMark Prop. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994) (quoting Manway
Constr. Co., Inc. v. Hous. Auth. of the City of Hartford, 711 F.2d 501, 503 (2d Cir. 1983)); see
Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”); Ruhrgas AG, 526 U.S. at 583 (“[S]ubject-matter
delineations must be policed by the courts on their own initiative.”).
Federal-question Jurisdiction
The Court lacks federal-question jurisdiction over Plaintiff’s claims. To invoke federalquestion jurisdiction, a plaintiff’s claims must arise “under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. A case arises under federal law if the complaint
“establishes either that federal law creates the cause of action or that the plaintiff’s right to relief
5

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 6 of 9

necessarily depends on resolution of a substantial question of federal law.” Bay Shore Union
Free Sch. Dist. v. Kain, 485 F.3d 730, 734-35 (2d Cir. 2007) (quoting Empire Healthchoice
Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006)) (internal quotation marks omitted). Mere
invocation of federal-question jurisdiction, without any facts demonstrating a federal-law claim,
does not create federal-question jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund,
81 F.3d 1182, 1188-89 (2d Cir. 1996); see also Shapiro v. McManus, 577 U.S. 39, 45 (2015)
(“We have long distinguished between failing to raise a substantial federal question for
jurisdictional purposes . . . and failing to state a claim for relief on the merits; only ‘wholly
insubstantial and frivolous’ claims implicate the former.”) (citation omitted).
Although Plaintiff invokes federal law, he alleges no facts suggesting that any of his
claims arise under federal law. Rather, Plaintiff’s claims arise from a dispute over ownership of
property, which is a matter of state law. See Fund Liquidation Holdings LLC v. Bank of Am.
Corp., 991 F.3d 370, 385 (2d Cir. 2021) (“[S]tate law often defines the legal relationships
between people and things, which are necessary to understanding whether a particular plaintiff
has suffered an injury in fact. A simple example of this is property ownership, which is . . . an
issue of state law.”). Thus, this Court lacks federal-question jurisdiction to consider Plaintiff’s
claims.
Diversity Jurisdiction
The Court also lacks diversity jurisdiction over the case. To establish the Court’s
diversity jurisdiction, a plaintiff must show that (1) he and the defendants are citizens of different
states, see 28 U.S.C. § 1332(a)(1); Wis. Dep’t of Corr. v. Schacht, 524 U.S. 381, 388 (1998) (“A
case falls within the federal district court’s ‘original’ diversity ‘jurisdiction’ only if diversity of
citizenship among the parties is complete, i.e., only if there is no plaintiff and no defendant who
are citizens of the same State.”) and (2) the amount in controversy exceeds $75,000. For
6

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 7 of 9

diversity purposes, an individual is a citizen of the State where he is domiciled, which is defined
as the place where he “has his true fixed home . . . and to which, whenever he is absent, he has
the intention of returning.” Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 (2d Cir. 2000)
(internal quotation marks and citation omitted). And “a limited liability company [ -- an ‘LLC,’
such as Mehrak LLC --] . . . takes the citizenship of each of its members.” Bayerische
Landesbank, N.Y. Branch v. Aladdin Capital Mgmt. LLC, 692 F.3d 42, 49 (2d Cir. 2012)
(citations omitted).
Plaintiff is a citizen of State of New York. Plaintiff alleges that he and all of the
defendants are citizens of the State of New York. The parties are therefore not diverse, and the
Court thus lacks diversity jurisdiction to consider Plaintiff’s claims. Accordingly, the Court
dismisses Plaintiff’s claims for lack of subject-matter jurisdiction.
The Rooker-Feldman Doctrine
Some of Plaintiff’s claims are also barred by the Rooker-Feldman doctrine. Under this
doctrine, which was created by two decisions of the Supreme Court of the United States, Rooker
v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923), and District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 482-86 (1983), federal district courts lack subject-matter jurisdiction to
review final orders and judgments of the state courts, see Exxon Mobil Corp. v. Saudi Basic
Indus. Corp., 544 U.S. 280, 291-92 (2005); see also Verizon Md., Inc. v. Pub. Serv. Comm’n of
Md., 535 U.S. 635, 644 n.3 (2002) (“28 U.S.C. § 1331 is a grant of original jurisdiction, and does
not authorize district courts to exercise appellate jurisdiction over state-court judgments. . . .”);
Dorce v. City of New York, 2 F.4th 82, 101 (2d Cir. 2021) (“The Rooker-Feldman doctrine bars
federal district courts from hearing cases that in effect are appeals from state court judgments,
because the Supreme Court [of the United States] is the only federal court with jurisdiction over
such cases.”).
7

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 8 of 9

To the extent that Plaintiff seeks to have this Court invalidate a final decision of a state
court granting Rad and Radparvar full ownership of the property, such claims run afoul of the
Rooker-Feldman doctrine and must be dismissed for that reason.
C.

The Court Denies Plaintiff Leave to Amend

Generally, a court should not dismiss a pro se complaint “without . . . granting leave to
amend at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted)). But a court has
inherent power to dismiss without leave to amend or replead “where the substance of the claim
pleaded is frivolous on its face,” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988), or where
amendment would otherwise be futile, Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); see
also Shapiro, 577 U.S. at 44-46 (holding that federal-question jurisdiction is lacking where the
claims are “wholly insubstantial and frivolous,” “essentially fictitious,” or “obviously without
merit” (internal quotation marks and citations omitted)).
Because granting Plaintiff leave to amend would be futile, the Court denies Plaintiff leave
to file an amended complaint.
IV.

CONCLUSION
The Court dismisses this action. The Court dismisses Plaintiff Nicholas Wayne Vitucci’s

claims that he asserts on behalf of the Estate of Jerry Vitucci as well as Donika Mejtoja without
prejudice. The Court dismisses Plaintiff Nicholas Wayne Vitucci’s own claims without prejudice
for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
Plaintiff Nicholas Wayne Vitucci has consented to electronic service of court documents.

8

Case 1:21-cv-06657-LGS Document 5 Filed 09/07/21 Page 9 of 9

The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Dated:

September 7, 2021
New York, New York

9