Nicholson v. The Bank of New York Mellon et al

Filing 112

MEMO ENDORSEMENT denying 110 Motion to Vacate 110 FIRST MOTION to Vacate 105 Order Adopting Report and Recommendations, Set/Clear Flags, Case Stay Lifted, PLAINTIFF'S RULE 60(B)(4) DISMISS ORDER FOR LACK OF SUBJECT MATTER JURISD ICTION., 111 SUPPLEMENTAL MOTION to Vacate 105 Order Adopting Report and Recommendations, Set/Clear Flags, Case Stay Lifted, 110 FIRST MOTION to Vacate 105 Order Adopting Report and Recommendations, Set/Clear Flags, Case Stay Li fted ; denying 111 Motion to Vacate 110 FIRST MOTION to Vacate 105 Order Adopting Report and Recommendations, Set/Clear Flags, Case Stay Lifted PLAINTIFF'S RULE 60(B)(4) DISMISS ORDER FOR LACK OF SUBJECT MATTER JURISDICTION ., 111 SUPPLEMENTAL MOTION to Vacate 105 Order Adopting Report and Recommendations, Set/Clear Flags, Case Stay Lifted, 110 FIRST MOTION to Vacate 105 Order Adopting Report and Recommendations, Set/Clear Flags, Case Stay Lifted. ENDOR SEMENT While this Court did not reach a holding on the Rooker-Feldman doctrine in its August 28, 2023 Order granting Defendant's motion to dismiss, as this Court explained in that Order: (1) the Second Circuit held in Hunter v. McMahon, 75 F.4 th 62 (2d Cir. 2023) that "[w]hen an appeal remains pending in state court, the state proceedings have not ended and Rooker-Feldman does not apply," id. at 65; and (2) Plaintiff filed the instant action on April 18, 2022, the same day as the Texas Court of Appeals order denying Plaintiff's "motion to set aside" its March 31, 2022 decision affirming the Texas trial court's order granting Defendant summary judgment in her previous action, and more than two months before the Texas Court of Appeals' mandate was issued on June 30, 2022. See Nicholson v. Bank of New York Mellon Tr. for Certificate Holders of CWMBS, Inc., CWMBS Reforming Loan Remic Tr. Certificates Series 2005-R2, No. 22CIV3177PGGKHP, 202 3 WL 5526715, at *8 n.6 (S.D.N.Y. Aug. 28, 2023) (citing Texas Court of Appeals Docket Sheet (Dkt. No. 84) at 5-6). Given the Second Circuit's decision in McMahon and the timing of the instant case as compared to Plaintiff's appeal in Tex as, there was no basis in the record to conclude that the Rooker-Feldman doctrine applied, and therefore no basis to doubt this Court's subject-matter jurisdiction. Accordingly, this Court did in fact properly exercise its jurisdiction in rea ching the res judicata issue raised by Defendant's Rule 12(b)(6) motion to dismiss. Pro se Plaintiff's contention that this Court's August 28, 2023 Order was "void...for lack of subject matter jurisdiction (Nov. 8, 2023 Pltf. Lt r. (Dkt. No. 110) at 3) is therefore incorrect, and her motion for relief from that Order is denied. The Clerk of Court is directed to terminate the motions at Dkt. Nos. 110 and 111. SO ORDERED. (Signed by Judge Paul G. Gardephe on 11/10/2023) (jca)

Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

HARRIET NICHOLSON, Plaintiff,
Civil Action No. 1:22-cv-03177-PGG-KHP

vs.

PLAINTIFF’S RULE 60(b)(4)

THE BANK OF NEW YORK MELLON
fka THE BANK OF NEW YORK
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWMBS,
INC., CWMBS REFORMING LOAN
REMIC TRUST CERTIFICATES SERIES
005-R2, Defendant.

MOTION FOR RELIEF FROM VOID
ORDER FOR LACK OF
JURISDICTION

PLAINTIFF’S MOTION FOR RELIEF FROM A VOID ORDER FOR
LACK OF SUBJECT MATTER JURISDICTION
TO THE COURT:
Now comes Plaintiff Harriet Nicholson and files Plaintiff’s timely Rule
60(b)(4) Motion for Relief from a Void Order for a lack of subject matter
jurisdiction and would show unto the court the following:
Nicholson seeks relief from August 28, 2023 Order pursuant to FRCP
60(b)(4):
Rule 60. Relief from a Judgment or Order
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons: (4) the judgment is void..
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Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 2 of 7

The district court has no discretion [in ruling on a 60(b)(4) motion], the
judgment is either void or it is not. Central Vermont Public Service Corp. v.
Herbert, 341 F.3d 186, 189 (C.A.2 (Vt.),2003) quoting Recreational Properties,
Inc. v. Southwest Mortgage Serv. Corp., 804 F.2d 311, 314 (5th Cir.1986).
On August 28, 2023, this court signed an Order (Dkt. 105) granting
Defendant’s Motion to Dismiss/Lack of Jurisdiction (Dkt. 53) with prejudice filed
by The Bank of York Mellon.

08/28/2023

105 ORDER for 102 Motion to Adjourn Conference filed by Harriet
Nicholson, 42 Motion for Partial Summary Judgment filed by Harriet
Nicholson, 59 Motion for Leave to File Document, filed by Harriet
Nicholson, 53 Motion to Dismiss/Lack of Jurisdiction filed by The Bank of New
York Mellon, 83 Report and Recommendations. The R&R is adopted in part as
set forth above. Defendant's motion to dismiss is granted, and Plaintiffs motion
for leave to amend is denied. Plaintiffs motion for partial summary judgment
(Dkt. No. 42) and motion to set a status conference (Dkt. No. 102) are denied as
moot. The Clerk of Court is directed to terminate the motions (Dkt. Nos. 42, 53,
59, 102), and to close this case. Case Stay Lifted. (Signed by Judge Paul G.
Gardephe on 8/28/2023) (ate) (Entered: 08/28/2023)

This court held in Nicholson v. Bank of New York Mellon Trustee for
Certificate Holders of CWMBS, Inc., CWMBS Reforming Loan Remic Trust
Certificates Series 2005-R2, 2023 WL 5526715, at *8 (S.D.N.Y., 2023):
Judge Parker also finds that the SAC should be dismissed under Fed.
R. Civ. P. 12(b)(1), because this Court lacks subject matter
jurisdiction to hear Plaintiff's claims under the Rooker-Feldman
doctrine.
If Rooker–Feldman applies, a res judicata claim must not be reached.
Harris v. New York State Dept. of Health, 202 F.Supp.2d 143, 160
(S.D.N.Y.,2002)
2

Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 3 of 7

“Without jurisdiction the court cannot proceed at all in any cause.
Jurisdiction is power to declare the law, and when it ceases to exist, the only
function remaining to the court is that of announcing the fact and dismissing the
cause.” Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868). Steel Co. v.
Citizens for a Better Environment, 118 S.Ct. 1003, 1012, 523 U.S. 83, 94 (U.S.Ill.,
1998)
It is black letter law and well-established law in this Court1, a federal court
generally may not rule on the merits of a case without first determining that it has
jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the
parties (personal jurisdiction). Monterey Bay Military Housing, LLC v. Ambac
Assurance Corporation, 531 F.Supp.3d 673, 699 (S.D.N.Y., 2021) quoting
Sinochem Int'l. Co. Ltd. v. Malay. Int'l. Shipping Corp., 549 U.S. 422, 430-31, 127
S.Ct. 1184, 167 L.Ed.2d 15 (2007).

WHERFORE, the court should vacate the void August 28, 2023, Order for
lack of subject matter jurisdiction pursuant to FRCP 60(b)(4).
Respectfully submitted,
/s/ Harriet Nicholson

CERTIFICATE OS SERVICE
I certify counsel of record was served when e-filing via pacer on November
8, 2023.
/s/ Harriet Nicholson

1

See Ex. A

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Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 4 of 7

EX. A
MONTEREY BAY MILITARY HOUSING, LLC v. AMBAC
531 F. Supp. 3d 673 - Dist. Court, SD New York, 2021 - Google Scholar
… PAUL G. GARDEPHE, United States District Judge … 2d 15 (2007)
("[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
SaveCite Cited by 33 How cited All 2 versions

Hylton v. JP Morgan Chase Bank, NA
338 F. Supp. 3d 263 - Dist. Court, SD New York, 2018 - Google Scholar
… ORDER. Paul G. Gardephe, United States District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category …
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AYEKABA v. MBA
Dist. Court, SD New York, 2020 - Google Scholar
… ORDER. PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in …
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KOTLYARSKY v. United States Department of Justice
Dist. Court, SD New York, 2022 - Google Scholar
… ORDER. PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in …
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Walpert v. Jaffrey
127 F. Supp. 3d 105 - Dist. Court, SD New York, 2015 - Google Scholar
… PAUL G. GARDEPHE, District Judge … No. 69)). LEGAL STANDARD.
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
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Brown v. KERRY INC.
Dist. Court, SD New York, 2022 - Google Scholar
… March 7, 2022. ORDER. PAUL G. GARDEPHE, District Judge …
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s jurisdiction over the …
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Hoffman v. CITY COLLEGE OF NEW YORK
Dist. Court, SD New York, 2021 - Google Scholar
… PAUL G. GARDEPHE, District Judge … A. Rule 12(b)(1) Motion.
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
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4

Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 5 of 7

Cruz v. New York City Department of Education
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… ORDER. PAUL G. GARDEPHE, District Judge …
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NEXT GENERATION TECHNOLOGY, INC. v. JADDOU
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… March 18, 2023. ORDER. PAUL G. GARDEPHE, District Judge …
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s jurisdiction over the …
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Thompson v. Elev8 CENTER NEW YORK, LLC
Dist. Court, SD New York, 2023 - Google Scholar
… ORDER. PAUL G. GARDEPHE, District Judge …
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s jurisdiction over the category of claim in …
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YING YU LIU v. Wolf
Dist. Court, SD New York, 2020 - Google Scholar
… May 30, 2020. ORDER. PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
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Hylton v. JP Morgan Chase Bank, NA
Dist. Court, SD New York, 2018 - Google Scholar
… ORDER. PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in …
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GOTTESFELD v. Anderson
Dist. Court, SD New York, 2020 - Google Scholar
… ORDER. PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in …
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PARTNERS LLC
Dist. Court, SD New York, 2017 - Google Scholar
… PAUL G. GARDEPHE, District Judge … I. LEGAL STANDARD.
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
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YS GM MARFIN II LLC v. FOUR WOOD CAPITAL ADVISORS, LLC
Dist. Court, SD New York, 2023 - Google Scholar
… PAUL G. GARDEPHE, District Judge … A. Fed. R. Civ. P. 12(b)(1).
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s jurisdiction over the …
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Reed v. Luxury Vacation Home LLC
632 F. Supp. 3d 489 - Dist. Court, SD New York, 2022 - Google Scholar

5

Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 6 of 7

… ORDER. PAUL G. GARDEPHE, United States District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
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ELGHOSSAIN v. BANK AUDI SAL
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… ORDER. PAUL G. GARDEPHE, District Judge …
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LAWYERS COMMITTEE FOR 9/11 INQUIRY, INC. v. Barr
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… March 24, 2021. ORDER. PAUL G. GARDEPHE, District Judge …
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s jurisdiction over the …
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BALKANLI v. PUBLIC STORAGE
Dist. Court, ED New York, 2018 - Google Scholar
… Paul G. Gardephe, United States District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim …
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Reed v. LUXURY VACATION HOME LLC
Dist. Court, SD New York, 2022 - Google Scholar
… ORDER. PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in …
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Wiggins v. UNILEVER UNITED STATES, INC.
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… PAUL G. GARDEPHE, District Judge …
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s jurisdiction over the category of claim in suit ([ie …
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… PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in suit ([ie …
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Leckie v. City of New York
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… PAUL G. GARDEPHE, District Judge …
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Case 1:22-cv-03177-PGG-KHP Document 110 Filed 11/08/23 Page 7 of 7

SaveCite

Seaman v. NATIONAL COLLEGIATE STUDENT LOAN TRUST
2007-2
Dist. Court, SD New York, 2023 - Google Scholar
… PAUL G. GARDEPHE, District Judge …
"[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the category of claim in suit ([ie …
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MONTEREY BAY MILITARY HOUSING, LLC v. AMBAC
ASSURANCE CORPORATION
Dist. Court, SD New York, 2021 - Google Scholar
… PAUL G. GARDEPHE, District Judge … 549 US 422, 430-31 (2007)
("[A] federal court generally may not rule on the merits of a case without first determining that it ha
s jurisdiction over the …
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MEMO ENDORSED: While this Court did not reach a holding on the Rooker-Feldman doctrine in its
August 28, 2023 Order granting Defendant’s motion to dismiss, as this Court explained in that Order:
(1) the Second Circuit held in Hunter v. McMahon, 75 F.4th 62 (2d Cir. 2023) that “[w]hen an appeal
remains pending in state court, the state proceedings have not ended and Rooker-Feldman does not
apply,” id. at 65; and (2) Plaintiff filed the instant action on April 18, 2022, the same day as the Texas
Court of Appeals’ order denying Plaintiff's “motion to set aside” its March 31, 2022 decision affirming
the Texas trial court’s order granting Defendant summary judgment in her previous action, and more
than two months before the Texas Court of Appeals' mandate was issued on June 30, 2022. See
Nicholson v. Bank of New York Mellon Tr. for Certificate Holders of CWMBS, Inc., CWMBS Reforming
Loan Remic Tr. Certificates Series 2005-R2, No. 22CIV3177PGGKHP, 2023 WL 5526715, at *8 n.6
(S.D.N.Y. Aug. 28, 2023) (citing Texas Court of Appeals Docket Sheet (Dkt. No. 84) at 5-6). Given the
Second Circuit’s decision in McMahon and the timing of the instant case as compared to Plaintiff’s
appeal in Texas, there was no basis in the record to conclude that the Rooker-Feldman doctrine
applied, and therefore no basis to doubt this Court’s subject-matter jurisdiction. Accordingly, this Court
did in fact properly exercise its jurisdiction in reaching the res judicata issue raised by Defendant’s Rule
12(b)(6) motion to dismiss. Pro se Plaintiff’s contention that this Court’s August 28, 2023 Order was
“void . . . for lack of subject matter jurisdiction” (Nov. 8, 2023 Pltf. Ltr. (Dkt. No. 110) at 3) is therefore
incorrect, and her motion for relief from that Order is denied. The Clerk of Court is directed to terminate
the motions at Dkt. Nos. 110 and 111.

Dated: November 10, 2023

7