Lee v. Citibank and Employees et al
Filing
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DECISION and ORDER granting (3) defendants' Motion to Dismiss for Lack of Jurisdiction, dismissing the complaint and denying leave to appeal IFP in case. Clerk of court to close case. Signed by Hon. Richard J. Arcara on 10/25/2012.CLERK TO FOLLOW UP. Modified on 10/26/2012 (JMB).
UNITED STATES DISTRICT COURT
W ESTERN DISTRICT OF NEW YORK
THOMAS LEE, Trustee of Lee Family W ealth
Trust (LFW T),
Plaintiff,
DECISION AND ORDER
12-CV-566-A
-vCITIBANK, VIKRAM S. PANDIT, CEO of Citibank;
BENJAMIN D. VELELLA, VP & Senior Counsel;
ANTHONY CORRENTI, Chief Respondent,
Defendants.
INTRODUCTION
Plaintiff, Thomas Lee,1 has filed his third pro se action in this Court against
Citibank and three individuals employed by it, including its former CEO, Vikram
Pandit, Vice President and General Counsel, Benjamin Velella, and “Chief
Respondent,” Anthony Correnti, alleging, as he had in the prior two actions, that
Citibank and its employees engaged in fraud in relation to its decision not to honor
or redeem certain “gold bonds” or “gold notes.” The bonds are described as “[a]
US 1931 $500 m Federal Reserve Gold Note” and “[a] 1935 US 10 m Gold B.”
Plaintiff seeks monetary damages of more than 18 million dollars and punitive
1
The Court notes that the plaintiff is purportedly listed as “Thom as Lee, Trustee of the Lee Fam ily
W ealth Trust (LFW T).” However, if the Lee Fam ily W ealth Trust is truly the plaintiff in this action, the com plaint
would need to be dism issed because Thom as Lee is not a licensed attorney and therefore cannot represent
the Trust. See., e.g.. Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007) (A person who has not been
adm itted to the practice of law m ay not represent anybody other than him self.); see also 28 U.S.C. § 1654.
The court therefore construes the com plaint as being brought by Thom as Lee as plaintiff.
damages of one hundred and sixty million dollars.
(Docket No. 1, Complaint,
Sections 2C and 6.) Plaintiff has paid the filing fee.
The first two actions, Lee v. Pandit, et al., 11-CV-0954A, and Lee v. Pandit, et
al., 11-CV-1086A, were consolidated because it was determined that they arose out
of the same common questions of law or fact (11-CV-0954A, Docket No. 4, Order),
and the consolidated action (11-CV-0954A) was dismissed but with leave to replead
on the bases that plaintiff failed to plead subject matter jurisdiction and that the
complaint failed to state a claim upon which relief could be granted and appeared to
be frivolous. (Id., Docket No. 4, Order.) Plaintiff filed an amended complaint, which
was dismissed on the bases of lack of subject matter jurisdiction and the failure to
state a claim upon which relief can be granted. (Id., Docket No. 8, Order.) Leave to
appeal as a poor person was denied because, pursuant to 28 U.S.C. § 1915(a)(3),
the Court found that any appeal from the Order would not be taken in good faith.
(Id.). Judgment was entered on June 14, 2012, and on June 18, 2012, plaintiff filed
a Notice of Appeal. (Docket No. 10.)
Defendants have moved for an order, pursuant to Fed.R.Civ.P. 4(e) and 4(h),
dismissing the instant complaint based on plaintiff’s failure to properly serve the
summons and complaint. (Docket No. 3.) Plaintiff has filed a number of memoranda
of law (Docket Nos. 5, 9, 11, 12) and numerous other filings and letters (Docket No.
6, 7, 10, 13-22) with the Court either in response to defendants’ motion to dismiss or
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in relation to other issues that he believes are relevant to his action.2 (Docket No.
6-7, 10, 13-22.) Defendants have also filed a reply memorandum of law. (Docket No.
8.) For the following reasons, the plaintiff’s complaint is dismissed with prejudice
because it is repetitive of the prior actions filed and thus frivolous. Additionally,
defendants’ motion to dismiss the complaint for lack of proper service, pursuant to
Fed.R.Civ.P. 4(e) and 4(h), is granted.
A. Repetitious and Frivolous
Although this Court must liberally construe the pleadings filed by pro se
litigants, Haines v. Kerner, 404 U.S. 519 (1972), it will not allow duplicative or
repetitious litigation of identical causes of action. See Bailey v. Johnson, 846 F.2d
1019, 1021 (5th Cir. 1988) (holding that a complaint that repeats pending or
previously litigated claims "may be considered abusive and dismissed under the
authority of section 1915(e)"); Blake v. Bentsen, 1995 W L 428694, at *2 (E.D.N.Y.
1995) (directing dismissal of repetitious litigation as abusive and malicious); see also
Hawkins-El v. AIG Federal Savings Bank, 334 Fed.Appx. 394, 2009 W L 1703229 (2d
Cir., June 18, 2009) (Summary Order) (“’[D]istrict courts may dismiss a frivolous
complaint sua sponte even when the plaintiff has paid the required filing fee, just as
the Court of Appeals may dismiss frivolous matters in like circumstances.’”) (quoting
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One such letter is titled “The False Prophecy of one David Cheever of Citibank.” The letter claim s
to be about “one suspicious character nam ed David Cheever who posted com m ents on Banking Forum [o]n
num erous occasions to claim having the inside track on the Court rulings of Civil Case No. 12-CV-2462 relating
to m y filed charge of Bank Fraud + Misconducts by Citibank Em ployees two days ahead the final judgm ent on
Septem ber 20, 2012.” The Court sees no relevance of this letter to plaintiff’s claim s and Case No. 12-CV-2462
is not a case num ber of this Court.
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Fitzgerald v. First East Seventh Street Tenants Corp. 221 F.3d 362, 364 (2d Cir.
2000)).
Plaintiff has filed the same case on three separate occasions. The first two
were consolidated and later dismissed. (11-CV-0954A, Docket No. 8-9, Order and
Judgment.) The instant action involves the same facts pled previously in the first two
actions. The only differences between the instant complaint and the prior ones is that
Citibank is now added as a defendant and plaintiff appears to seek a greater amount
in monetary damages. Neither of these differences affect the Plaintiff’s factual or
legal claims in any way. This action is the same as the other two actions filed
previously and plaintiff has still not alleged a basis for subject matter jurisdiction nor
has he stated a “claim that is plausible on its face.” See Ashcroft v. Iqbal, 566 U.S.
662, 678 (2009) (internal quotations and citation omitted).
Despite trying to re-label his claim herein as “bank fraud,” it is nonetheless
appears from the facts pled that the “issue” at hand is still one of “Breach of Contract”
as the prior complaints were labeled and construed. As discussed in the Order
dismissing the prior consolidated action, the claims pled, however labeled, are state
common law claims and plaintiff does not allege a basis of subject matter jurisdiction
in this Court, under either 28 U.S.C. § 1332 (“diversity of citizenship” jurisdiction) or
28 U.S.C. § 1331 (“arising under” jurisdiction).3
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Plaintiff’s breach of contract claim is not a federal claim arising under the Constitution, laws or treaties
of the United States, and thus in the absence of diversity of citizenship jurisdiction the Court has no subject
m atter jurisdiction over it. See Quagliano Tobacco & Candy Co. v. Mitchell, CIVIL ACTION NO. 94-3788
SECTION “L”, 1995 U.S. Dist. LEXIS 16795, at *3 (E.D. La., Nov. 1, 1995); See also 1610 Corp. v. Kemp, 753
4
The Court noted in its Order dismissing the consolidated action that a
corporation is deemed to be a citizen of its state of incorporation and the state where
it maintains its principal place of business, and thus adding Citibank as a defendant
does not change the fact that the Court lacks subject matter jurisdiction over the
claims pled herein and the prior actions because Citibank’s principal place of
business is alleged to be New York, New York. See 28 U.S.C. § 1332 (c)(1); see
also Advani Enterprises, Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir.
1998) (It is well-settled that “[t]he party seeking to invoke jurisdiction under 28 U.S.C.
§ 1332 bears the burden of demonstrating that the grounds for diversity exist and that
diversity is complete.”) (citing McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936)).
Moreover, even if Citibank was diverse from plaintiff, the
allegations set forth in the instant complaint do not plead “complete” diversity
inasmuch as plaintiff alleges that the addresses of the individual defendants are also
in New York. Advani Enterprises, Inc., 140 F.3d at 160 (citation omitted). Plaintiff
does not plead that the individual defendants’ domiciles are different than his and
other than New York. See 28 U.S.C .1332 (a)(1); see, e.g., Linardos v. Fortuna, 157
F.3d 945, 948 (2d Cir.1998) (“Domicile is the place where a person has his true fixed
F. Supp. 1026, 1031-32 (D. Mass. 1991) (holding that a breach of contract claim did not present a federal
question). Fraud is also a state com m on law claim that does not arise under the Constitution, laws or treaties
of the United States. See, e.g., Herbst v. Vigianco, 1999 W L 362960, at *3 (S.D.N.Y., May 26, 1999) (Plaintiff’s
claim s, which appear to state claim s for breach of contract, fraud or the like, are not federal claim s under
federal question (arising under) jurisdiction under 28 U.S.C. § 1331) (Report and Recom m endation of United
States Magistrate Judge accepted by District Judge).
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home and principal establishment, and to which, whenever he is absent, he has the
intention of returning.”) (citation and internal quotation marks omitted)).
It is abundantly clear that plaintiff alleges the same facts, describes the same
occurrences, and invokes the same basis for his requested relief as he had in the
prior actions. Accordingly, the Court finds that the instant action should be dismissed
with prejudice as repetitive, duplicative and frivolous.
B. Service of Summons and Complaint
As noted, the defendants have moved to dismiss the complaint on the basis
that plaintiff failed to serve the summons and complaint properly. See Fed.R.Civ.P.
4(e) and 4(h). As defendants point out, plaintiff has conceded on more than one
occasion that summons were sent on June 20, 2012 to defendants via Registered
Mail by the United States Postal Service. (Docket No. 3-6, Defendants’ Motion to
Dismiss, Memorandum of Law, at 3, and No. 3-1, Declaration of Barry J. Glickman,
Exh. B--Plaintiff letter to Court dated July 2, 2012; Docket No. 6, Plaintiff’s letter to
Court, dated July 2, 2012 (“All above Summons [sic] were sent via Registered Mails
by USPS service.”) Service of the summons and complaint by Registered Mail is not
a proper basis of service. See Fed.R.Civ.P. 4(e) and 4(h).
Fed.R.Civ.P. 4(e) provides:
(e) SERVING AN INDIVIDUAL W ITHIN A JUDICIAL DISTRICT
OF THE UNITED STATES. Unless federal law provides otherwise, an individual - other th
whose waiver has been filed - may be served in a judicial district of the United
States by:
(1) following state law for serving a summons in an action
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brought in courts of general jurisdiction in the state where
the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint
to the individual personally;
(B) leaving a copy of each at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there; or
(C) delivering a copy of each to an agent authorized by
appointment or by law to receive service of process.
Fed R. Civ. P. 4(h) provides:
(h) SERVING A CORPORATION, PARTNERSHIP, OR
ASSOCIATION. Unless federal law provides otherwise or the
defendant’s waiver has been filed, a domestic or foreign
corporation, or a partnership or other unincorporated
association that is subject to suit under a common name,
must be served:
(1) in a judicial district of the United States:
(A) in the manner prescribed by Rule 4(e)(1) for serving an
individual; or
(B) by delivering a copy of the summons and of the
complaint to an officer, a managing or general agent, or any
other agent authorized by appointment or by law to receive
service of process and if the agent is one authorized by
statute and the statute so requires by also mailing a copy
of each to the defendant; or
(2) at a place not within any judicial district of the United
States, in any manner prescribed by Rule 4(f) for serving an
individual, except personal delivery under (f)(2)(c).
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Neither of these two subparagraphs of Rule 4 provide for service of either
an individual or corporation (banking association) by registered mail only. W hile
service by mail is recognized under state law, see N.Y.C.P.L.R. 312-a, in order for
service by mail to be effected properly under state law, a plaintiff must forward to
defendant an Acknowledgment of Service by Mail with the summons and
complaint, and service is not complete until and unless the defendant signs and
returns the Acknowledgment of Service to the sender (plaintiff). This did not occur
in this action. Similarly, while Fed.R.Civ.P. 4(d) provides for the “waiver of
service” of a summons, plaintiff has not requested nor obtained a signed W aiver of
Service from defendants as required by the Rule. Accordingly, plaintiff did not
properly effect service of the summonses and complaints on defendants and
defendants’ motion to dismiss the complaint is granted. See Fed.R.Civ.P. 12(b)(5).
CONCLUSION
For the reasons stated above, the complaint is dismissed with prejudice
and, additionally, the defendants’ motion to dismiss the complaint for improper
service is granted. The plaintiff is advised and cautioned that if he continues to file
lawsuits in this Court that raise claims that the Court does not have subject
jurisdiction over and/or are frivolous and/or fail to state a claim upon which relief
can be granted, he will be subject to significant sanctions, including but not limited
to monetary fines and an order precluding any future filings in this and other
courts. See Fed.R.Civ.P. 11; In re McDonald, 489 U.S. 180, 184 n. 8 (1989) (It is
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well-established that the federal courts “have both the inherent power and the
constitutional obligation to protect their jurisdiction from conduct which impairs
their ability to carry out Article III functions.”) (quoting In re Martin-Trigona, 737
F.2d 1254, 1261 (2d Cir.), cert. denied 474 U.S. 1061 (1986)).
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this Order would not be taken in good faith, and leave to appeal to the
Court of Appeals as a poor person is denied. Coppedge v. United States, 369
U.S. 438 (1962). Further requests to proceed on appeal as a poor person should
be directed, on motion, to the United States Court of Appeals for the Second
Circuit, in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
ORDER
IT HEREBY IS ORDERED, that plaintiff's that the complaint is dismissed
with prejudice and, additionally, defendants’ motion to dismiss the complaint is
granted; and
FURTHER, that leave to appeal to the Court of Appeals as a poor person is
denied.
SO ORDERED.
s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED:October 25, 2012
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