Buczek v. Tirone et al

Filing 23

DECISION AND ORDER DIRECTING the Clerk of Court to cause United States Marshals Service to serve Summons and Amended Writ of Replevin, as specified; FURTHER, the Clerk of Court is DIRECTED to dismiss and terminate individuals, as specified; FURTHER, DENYING Plaintiff's 16 Motion for Service, as specified; FURTHER, DENYING Defendant Patricia L. Fulwiler's 22 Motion to Dismiss as moot; FURTHER, DENYING Plaintiff's 14 Motion for Hearing as premature; FURTHER, DIRECTING Plaintif f to submit accurate and complete copies of the necessary number of summonses and Marshal Process Receipt and Return forms to the Clerk's Office; FURTHER, said Defendants and former Defendants need not take any action with respect to the original Writ of Replevin, as specified; and FURTHER, DENYING Defendant Gilbert Reyes' 17 Motion for Extension of Time to Answer as moot. Signed by William M. Skretny, United States District Judge on 8/5/2015. (CLERK TO FOLLOW UP). (CMD)

-PS-O-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DEBRA-ANN BUCZEK,
Plaintiff,
DECISION and ORDER
15-CV-28S

-vWELLS FARGO TRUST SERVICE BANK, N.A., et al.,
Defendants.

Plaintiff, Deborah-Ann Buczek, acting pro se, filed this action by submitting a document
entitled “Writ of Replevin [F.R.C.P. Rule 64], ‘RICO Act’” (Docket No. 1, Writ of Replevin), and
an application to proceed in forma pauperis (Docket No. 2). The Clerk of Court, upon opening
this matter, docketed the Writ of Replevin as a “Motion for Writ in Replevin by Deborah-Ann
Buczek” (“Writ of Replevin”). (Docket No. 1.) The Court, as obligated, liberally construed the
Writ of Replevin as a Complaint, see Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996),
and, inter alia, granted Plaintiff permission to proceed in forma pauperis and directed the Clerk
of Court to cause the Summons and Complaint (Writ of Replevin) to be served upon the
named Defendants, except for Defendant New York State Supreme Court Justice Timothy
Walker, who was dismissed from the action pursuant to 28 U.S.C. § 1915(e)(2)(B)(iii)
(absolute judicial immunity). (Docket No. 8, Decision and Order.) The Court also denied
Plaintiff’s Motions for a Stay of all Foreclosure Proceedings Pending in New York State
Supreme Court, Erie County, and for “Mandatory Judicial Notice.” (Id.)
Plaintiff then filed two Motions for Reconsideration of the Court’s Decision and Order,
both of which were denied on the bases that (1) Plaintiff had not demonstrated any
circumstances under which reconsideration should be granted, see Virgin Atl. Airways, Ltd.

v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992), and (2) Plaintiff failed to establish
that this case warranted the extraordinary relief of an injunction against the state court
foreclosure proceedings at issue under the All Writs Act, 28 U.S.C. § 1651, or that this case
fell within one of the enumerated exceptions to the Anti-Injunction Act. (Docket No. 13, Text
Order.)
Before providing to the Clerk of Court the necessary number of completed summonses
and United States Marshal Process Receipt and Return Forms (USM-285) for service upon
all Defendants, Plaintiff filed a Motion for a Hearing (Docket No. 14), an Amended Writ of
Replevin, which the Court construes herein as an Amended Complaint (Docket No. 15), and
a Motion for Service by the United States Marshal and to Reinstate Defendants Gilbert Reyes,
Patricia Fulwiller, and American Eagle Abstract, Inc., who were terminated as parties to the
action by the Clerk of Court upon the filing of the Amended Writ of Replevin because they
were not as named as Defendants in the Caption (Docket No. 16).
The Amended Complaint supersedes Plaintiff’s original Writ of Replevin and renders
it of no legal effect. See Arce v. Walker, 139 F.3d 329, 332 n. 4 (2d Cir. 1998) (quoting Int’l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)); see also Shields v. Citytrust
Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). Although Plaintiff names 21 defendants in
the caption of her Amended Complaint, she sets out factual allegations against only five of
them in the body of the pleading. (Docket No. 15.) No factual allegations are contained in the
Amended Complaint against the other 16 purported defendants. Cf. Fed. R. Civ. Pro. 8 (a)(2)
(requiring that a plaintiff include “a short and plain statement of the claim showing that the
pleader is entitled to relief”); Fed. R. Civ. Pro. 8 (d)(1) (requiring that a pleading contain
“simple, concise, and direct” allegations). Because Plaintiff has failed to allege any facts
against 16 of the defendants that she includes in the caption of her Amended Complaint, those
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16 defendants will be dismissed for failure to state a claim upon which relief can be granted.
See 28 U.S.C. § 1915 (e)(2)(B)(ii) (authorizing a court to dismiss at any time a complaint or
any portion thereof filed by an individual proceeding in forma pauperis for failure to state a
claim upon which relief may be granted). Plaintiff has also failed to name in the caption or
allege facts against Gilbert Reyes, Patricia L. Fulwiler, and American Eagle Abstract, Inc.
Plaintiff’s motion to “reinstate” them as defendants will therefore be similarly denied. See 28
U.S.C. § 1915 (e)(2)(B)(ii).
Accordingly,
IT IS HEREBY ORDERED, that the Clerk of Court is directed to cause the United
States Marshals Service to serve the Summons and Amended Writ of Replevin, together with
a copy of this Decision and Order, on Defendants Wells Fargo Trust Service Bank, N.A.;
Gasper A. Tirone; Elaine E. Tirone; Gasper A. Tirone and Elaine E. Tirone Trust, dated
February 9, 2011; and Steven W. Wells, without Plaintiff's payment therefor, unpaid fees to
be recoverable if this action terminates by monetary award in Plaintiff's favor;
FURTHER, that the Clerk of Court is directed to dismiss and terminate the following
individuals and entities as defendants in this action: Garry M. Graber; Jason E. Markel;
Michael E. Reyen; Craig T. Lutterbein; Gregory J. Gillette; John E. Schmidt, Jr.; Scott Janas;
Stanley Kwieciak, III, Esq.; William F. Savino; Brian D. Gwitt; Darryl J. Colosi; John Garbo;
New York State Tax Department; Mrs. Gribble; Suzanne McFayden; and Sam Maneaun;
FURTHER, that Plaintiff’s Motion for Service by the United States Marshal and to
Reinstate Defendants Reyes, Fulwiller and American Eagle Abstract, Inc. (Docket No. 16) is
DENIED as moot to the extent it requests Marshals Service of the Summons and Amended
Writ of Replevin, see Fed.R.Civ.P. 4(c)(3), DENIED to the extent it seeks “reinstatement” of

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Defendants Reyes, Fulwiller, and American Eagle Abstract, Inc., and DENIED in all other
respects;
FURTHER, that the Motion to Dismiss (Docket No. 22) filed by Patricia L. Fulwiler is
DENIED as moot in light of her previous dismissal from this case and this Court’s Order
denying Plaintiff’s request to “reinstate” her;
FURTHER, that Plaintiff’s Motion for a Hearing (Docket No. 14) is DENIED as
premature; and
FURTHER, that Plaintiff is directed to submit to the Clerk’s Office forthwith accurate
and complete copies of the necessary number of summonses and Marshal Process Receipt
and Return Forms (USM-285) so that the United States Marshals Service can serve the
Summons and Amended Writ of Replevin as directed; and
FURTHER, that to the extent any Defendant or former Defendant has been served with
a Summons and original Writ of Replevin to date, the Amended Writ of Replevin has
superseded the original Writ of Replevin and rendered it of no legal effect[,]" Arce v. Walker,
139 F.3d 329, 332 n. 4 (2d Cir. 1998) (quoting International Controls Corp. v. Vesco, 556 F.2d
665, 668 (2d Cir. 1977)); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994) and, accordingly, said Defendants and former Defendants need not take any action
with respect to the original Writ of Replevin;

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FURTHER, that because former Defendant Gilbert Reyes is no longer a party to this
action, his Motion for Extension of Time to Answer (Docket No. 17) is DENIED as moot.
SO ORDERED.
Dated:

August 5, 2015
Buffalo, New York
s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge

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