Rosen et al v. Trustee of the Samuel D. Rosen, 2006 Trust et al
ORDER OF DISMISSAL: Plaintiff's complaint is dismissed based on judicial and Eleventh Amendment immunity and as frivolous. 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). The Clerk of Court is directed to enter judgment. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/19/2022) (sac)
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 1 of 9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
SAMUEL D. ROSEN, Grantor; TRUSTEE OF
THE SAMUEL D. ROSEN, 2006 TRUST,
THE STATE OF FLORIDA; THE
HONORABLE CHARLES R. CANADY;
HONORABLE KEVIN EMAS; HONORABLE
ORDER OF DISMISSAL
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is an attorney, brings this action on his own behalf and on behalf of a
“spendthrift trust” for which he is one of two trustees. 1 He sues the State of Florida and three
judges of the Florida state courts, invoking 42 U.S.C. §§ 1983 and 1985. Plaintiff alleges that
defendants have conspired to deprive him of his constitutional due process rights.
On August 25, 2022, Plaintiff submitted a “corrected” complaint, which was docketed as
an amended complaint (ECF 3). Plaintiff also filed an application seeking “emergency relief.”
(ECF 4-5.) 2 On September 14, 2022, Plaintiff filed a supplemental affirmation in support of his
request for emergency relief. The Court dismisses the amended complaint for the reasons set
Because it is not clear that Plaintiff can represent the Trust, the Court refers to Samuel
Rosen as “Plaintiff” in this matter.
This action could not proceed until Plaintiff paid the filing fee, which he did on
September 8, 2022.
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 2 of 9
STANDARD OF REVIEW
The Court has the authority to dismiss a complaint, even when the plaintiff has paid the
filing fee, if it lacks subject matter jurisdiction, Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
583 (1999), or determines that the action is frivolous, Fitzgerald v. First E. Seventh Tenants
Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17
(2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss
frivolous appeal)). A claim is frivolous when it “lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989), abrogated on other grounds by Bell Atl. Corp.
v. Twombly, 550 U.S. 544 (2007); see also Livingston v. Adirondack Beverage Co., 141 F.3d
434, 437 (2d Cir. 1998) (“[A]n action is ‘frivolous’ when either: (1) the factual contentions are
clearly baseless . . . ; or (2) the claim is based on an indisputably meritless legal theory.”)
(internal quotation marks and citation omitted).
The following information is from Plaintiff Samuel Rosen’s amended complaint and his
application for “emergency relief.” Beginning in 2017, Plaintiff brought four suits in the Miami
Judicial Circuit against owners of condominium units at the Tiffany of Bal Harbour
Condominium Association (Tiffany) in Florida, where he also resides. (ECF 4-2 at 2.) Tiffany’s
insurer, Seneca Insurance Company, hired Geralyn Passaro as counsel to defend the unit owners.
(Id. at 4.) Plaintiff “lost every single case” and contends that “[e]ach of the dismissals was a
travesty.” (Id. at 2-3.) The Third District Court of Appeal affirmed the dismissals.
On May 24, 2018, the President of Tiffany’s Board of Directors called a special meeting,
without providing proper notice, resulting in approval of a construction project requiring a
special assessment. (Id. at 3-4.) Tiffany’s Board refused to allow owners to view the proxy
ballots. In 2018, Tiffany filed suit against Rosen seeking to enjoin him, among other things, from
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 3 of 9
filing further suits. The Tiffany of Bal Harbour Condominium Assoc., Inc. v. Rosen, No. 2018021414-CA-01. Rosen answered and filed a counterclaim attacking the validity of the May 24,
2018 meeting. (Id. at 4.)
In August 2020, Chief Justice Charles T. Canady of the Supreme Court of Florida
appointed Judge Levenson, of the Fort Lauderdale trial court, as an “acting circuit judge” of the
Miami court and assigned to him the Tiffany-Rosen suit and eight other related suits involving
Rosen. (ECF 3 at 28-29.)
At some point, Rosen filed a motion in Tiffany’s 2018 suit against him in which he
argued that, as reflected in the meeting minutes of the Tiffany Board of Directors, Tiffany had
never authorized attorney Passaro to bring suit against Rosen. He asserted that Passaro had
committed perjury in saying that Tiffany had granted authorization. Judge Levenson refused to
hold a hearing on Rosen’s motion until he paid the fees he owed for numerous appeals to the
Third District Court of Appeal. 3 (ECF 4-2 at 5.) Prosecutors in Miami-Dade County, Florida, and
elsewhere refused Rosen’s attempts to prosecute Passaro for perjury. (Id. at 6.) A panel of judges
on the Third District Court of Appeal, including Judge Emas, who is named as a defendant in
this action, denied Rosen’s motion for sanctions against attorney Passaro. (ECF 4-4 at 2.)
In March 2021, Judge Levenson issued an order declaring Rosen a vexatious litigant.
(ECF 4-3 at 9.) At various times, Rosen sought to disqualify Judge Levenson from presiding
over the 2018 action. On July 9, 2021, Judge Levenson issued a final order and judgment
permanently enjoining Rosen and his Trust from certain conduct, including harassment of staff
Plaintiff alleges that “in 38 appearances before the [Third] DCA in the Rosen-Tiffany
litigation, Rosen still bats zero.” (ECF 4-2 at 8.)
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 4 of 9
and members of Tiffany, and from filing suit against Tiffany “without representation by legal
counsel.” (ECF 3 at 25.)
Plaintiff alleges that his Trust is registered in New York and includes a choice of law
provision “specifying New York law.” (Id. at 1.) The other co-trustee, who is not a party to this
action, resides “in New York City and Westchester County.” (Id.) Plaintiff contends that the
State of Florida runs “print and broadcast ads directed at residents of New York to induce them
to move to Florida.” (Id. at 2.)
Plaintiff brings this suit against the State of Florida, and Judges Levenson, Canady, and
Emas. He asserts claims under Sections 1983 and 1985, and seeks compensatory and punitive
damages, a declaration that the Florida Rules of Judicial Administration are unlawful, and an
injunction to prevent their future application.
Venue and Representation of Trust
Plaintiff is an attorney, but he provides conflicting information about whether he is
currently licensed to practice in New York. 4 As a result, it is unclear if he can represent the Trust
in this action. Under 28 U.S.C. § 1654, individuals may represent themselves in federal court but
a non-attorney cannot represent another person or any artificial entity. Lattanzio v. COMTA, 481
F.3d 137, 139-40 (2d Cir. 2007). As an artificial entity, a trust cannot appear pro se in federal
court. See, e.g., Bell v. S. Bay Eur. Corp., 486 F. Supp. 2d 257, 259 (S.D.N.Y. 2007) (holding
that “[a] trust is deemed an artificial entity for the purposes of the rule barring a nonlawyer
trustee from representing the interests of the trust”).
He alleges that he was admitted to the bar of the State of New York in 1969 and
“remains a member in good standing” (ECF 3 at 2) but also notes in a letter to the Court that he
doesn’t “believe [he] qualif[ies] as ‘active.’” (ECF 7 at 1.)
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 5 of 9
Plaintiff implies that venue of his claims against the State of Florida and three Florida
judges is proper in this Court because his trust includes a choice-of-law provision providing for
New York law. (ECF 3 at 1.) Even if Plaintiff could represent the Trust, and it could proceed as a
party in this action, these allegations are insufficient to establish that venue is proper in this
district. The general venue provision, 28 U.S.C. § 1391(b), applies to this matter, in which
Plaintiff asserts claims under Sections 1983 and 1985. Under the general venue provision, a civil
action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located; (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim
occurred . . . ; or (3) if there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in which any defendant is
subject to the court’s personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
Venue is not proper in this district under Section 1391(b)(1) because Defendants State of
Florida and the three Florida judges do not all reside in this district. In addition, Plaintiff’s
allegations show that none of the “events or omissions giving rise to the claim occurred” in this
district, as is required for venue to be proper under 28 U.S.C. § 1391(b)(2). Plaintiff sues three
judges on the Florida state courts for their judicial acts in his cases pending in Florida. His claims
against the judges for their judicial acts are unrelated to his trust and its New York choice-of-law
provision. This is unlike those situations where a forum selection clause in an agreement
between the parties governs disputes between them. Thus, because the events giving rise to
Plaintiff’s claims took place in Florida, venue under Section 1391(b) (2) does not lie in this
district. Finally, venue is not proper under Section 1391(b)(3) because venue would lie in a
judicial district in Florida, where the claims arose, under Section 1391(b)(2).
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 6 of 9
Under 28 U.S.C. § 1406, if a plaintiff files a case in the wrong venue, the Court “shall
dismiss, or if it be in the interest of justice, transfer such case to any district or division in which
it could have been brought.” 28 U.S.C. § 1406(a). Here, it would not be in the interest of justice
to transfer this action. Instead, the Court dismisses this action because all defendants are immune
from suit, and this action is frivolous, as explained below.
Claims against the State of Florida
The Eleventh Amendment bars Plaintiff’s claims in federal court against the State of
Florida. “[A]s a general rule, state governments may not be sued in federal court unless they
have waived their Eleventh Amendment immunity, or unless Congress has abrogated the states’
Eleventh Amendment immunity . . . .” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).
“The immunity recognized by the Eleventh Amendment extends beyond the states themselves to
state agents and state instrumentalities that are, effectively, arms of a state.” Id.
Congress did not abrogate the states’ immunity in enacting Sections 1983 or 1985. See
Trotman v. Palisades Interstate Park Comm’n, 557 F.2d 35, 40 (2d Cir. 1977) (addressing
Section 1983); Jones v. Nat’l Comm’cn & Surveillance Networks, 409 F. Supp. 2d 456, 467
(S.D.N.Y. 2006) (“Sections 1981 to 1986 of Title 42 . . . do not constitute a congressional waiver
of state immunity.”), aff’d, 266 F. App’x 31 (2d Cir. 2008) (summary order). The State of
Florida also has not waived its Eleventh Amendment immunity to suit in federal court. See, e.g.,
Schopler v. Bliss, 903 F.2d 1373, 1379 (11th Cir. 1990) (“[S]ubsection 768.28(16) declares the
legislature’s intention that Florida statutes not be construed to waive Eleventh Amendment
immunity unless they explicitly waive immunity from suit in federal court”). The Eleventh
Amendment therefore bars Plaintiff’s Section 1983 and 1985 claims against the State of Florida
from proceeding in federal court, and these claims are dismissed based on that immunity.
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 7 of 9
Claims against Judicial Officers
Judges are absolutely immune from suit for damages for any actions taken within the
scope of their judicial responsibilities. Mireles v. Waco, 502 U.S. 9, 11 (1991). Generally, “acts
arising out of, or related to, individual cases before the judge are considered judicial in nature.”
Bliven v. Hunt, 579 F.3d 204, 210 (2d Cir. 2009). “Even allegations of bad faith or malice cannot
overcome judicial immunity.” Id. (citations omitted). This is because, “[w]ithout insulation from
liability, judges would be subject to harassment and intimidation . . . .” Young v. Selsky, 41 F.3d
47, 51 (2d Cir. 1994). In addition, section 1983, as amended in 1996, provides that, “in any
action brought against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable.” 42 U.S.C. § 1983.
Judicial immunity does not apply when the judge takes action “outside” his judicial
capacity, or when the judge takes action that, although judicial in nature, is taken “in the absence
of jurisdiction.” Mireles, 502 U.S. at 13; see also Bliven, 579 F.3d at 209-10 (describing actions
that are judicial in nature). But “the scope of [a] judge’s jurisdiction must be construed broadly
where the issue is the immunity of the judge.” Stump v. Sparkman, 435 U.S. 349, 356 (1978).
Plaintiff fails to allege any facts showing that Defendants Levenson, Emas, and Canady
acted beyond the scope of their judicial responsibilities or outside of their jurisdiction. See
Mireles, 509 U.S. at 11-12. Because Plaintiff sues Defendants for “acts arising out of, or related
to, individual cases before [them],” they are immune from suit for such claims. Bliven, 579 F.3d
at 210. The Court therefore dismisses Plaintiff’s claims against Defendants Levenson, Emas, and
Canady based on judicial immunity and as frivolous. See Montero v. Travis, 171 F.3d 757, 760
(2d Cir. 1999) (“A complaint will be dismissed as ‘frivolous’ when ‘it is clear that the defendants
are immune from suit.’”) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989))). Mills v.
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 8 of 9
Fischer, 645 F.3d 176, 177 (2d Cir. 2011) (“Any claim dismissed on the ground of absolute
judicial immunity is ‘frivolous’. . . .”).
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to
cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione,
657 F.3d 116, 123–24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). As
an attorney, Plaintiff is not entitled to the special solicitude granted to pro se litigants. See Tracy
v. Freshwater, 623 F.3d 90, 102 (2d Cir. 2010) (“[A] lawyer representing himself ordinarily
receives no such solicitude at all.”). Moreover, the defects in Plaintiff’s complaint cannot be
cured with an amendment. The Court therefore declines to grant Plaintiff leave to amend his
Plaintiff is or should have been aware that his claims in this action were frivolous and
vexatious. See Sledge v. Kooi, 564 F.3d 105, 109-10 (2d Cir. 2009) (discussing circumstances
where litigant may be charged with knowledge of particular legal requirements). Plaintiff is
warned that should he file another complaint that is determined to be duplicative, frivolous,
vexatious, or otherwise lacking in merit, the Court will order him to show cause why he should
not be barred under Section 1651 from filing new actions without prior permission from the
Plaintiff’s complaint is dismissed based on judicial and Eleventh Amendment immunity
and as frivolous.
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).
Case 1:22-cv-06938-LTS Document 10 Filed 09/19/22 Page 9 of 9
The Clerk of Court is directed to enter judgment.
September 19, 2022
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?