Borst v. United States

Filing 25

DECISION AND ORDER granting 7 Government's Motion to Dismiss; denying 11 Plaintiff's Motion to Amend or Correct; denying 15 Plaintiff's Motion ; denying 18 Plaintiff's Motion ; denying 21 Plaintiff's Motion to Stay. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/19/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SANDRA ANN BORST,
Plaintiff,
-v-

1:17-cv-00204 (MAT)
DECISION AND ORDER

UNITED STATES OF AMERICA,
Defendant.

I.

Introduction
Pro se plaintiff Sandra Ann Borst(“plaintiff”) filed the

instant action on March 6, 2017.

She concurrently filed a motion

for leave to proceed in forma pauperis, but subsequently paid the
filing fee, resulting in the denial of her motion as moot.
Defendant the United States of America (“defendant” or “the
Government”) has moved to dismiss plaintiff’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), on the basis
that she has failed to establish this Court’s subject matter
jurisdiction and fails to state a claim.

Plaintiff has responded

to the pending motion to dismiss with several motions of her own,
including (1) a motion for leave to file an amended complaint,
(2) a motion for leave to complete her administrative remedies,
(3) a motion for leave to file a supplement to her proposed amended
complaint, and (4) a motion to stay all the proceedings in this
matter. The Government has opposed each of these motions.

For the

reasons discussed below, the Government’s motion to dismiss is
granted and plaintiff’s motions are denied.
II.

Background
As the Government notes in its motion to dismiss, plaintiff’s

complaint, while difficult to discern, appears to be a variant of
a “sovereign citizen” or “redemptionist” claim.
based

on

the

meritless

theory

that

“a

Such claims are

person

has

a

split

personality: a real person and a fictional person called the
‘strawman.’ The ‘strawman’ purportedly came into being when the
United States went off the gold standard . . . and, instead,
pledged

the

country’s

strawman

national

of

its

debt.

citizens

as

collateral

Redemptionists

claim

for

that

the

[the]

government has power only over the strawman and not over the live
person, who remains free.”
3397949,

at

*3

(N.D.N.Y.

Branton v. Columbia Cty., 2015 WL
May

26,

2015)

(quotation

omitted).

Redemptionists further believe that “[a] person's name spelled in
‘English,’ that is with initial capital letters and small letters,
represents the ‘real person,’ that is, the flesh and blood person.
Whenever a person's name is written in total capitals, however, as
it is on a birth certificate, the Redemptionists believe that only
the ‘strawman’ is referenced, and the flesh and blood person is not
involved.”

McLaughlin v. CitiMortgage, Inc., 726 F. Supp. 2d 201,

210 (D. Conn. 2010) (quotation omitted).

2

In this case, plaintiff’s complaint includes as exhibits the
birth

certificates

grandson.

for

herself,

her

three

children,

and

her

The complaint alleges that these birth certificates

created a “vessel” that was placed into the “sea of commerce,” and
that she and her children and grandchild are “merchant mariners”
onboard such “vessel.”

The complaint further alleges that this

Court is a bank and that by filing this action, she deposited a
security into said bank.

The complaint purports to invoke the

jurisdiction of this Court based on admiralty and maritime law specifically, 46 U.S.C. §§ 103 (“Section 103") and 311.

Section

103 defines the term “boundary line” in the context of shipping.
There is no section 311 in Title 46 of the United States Code.
Plaintiff has filed a motion to filed an amended complaint,
and has attached a copy of her proposed amendments.

Plaintiff

again purports to invoke this Court’s jurisdiction under admiralty
and maritime law, but also seeks to add a claim based on the
Federal Tort Claims Act (the “FTCA”). Plaintiff’s proposed amended
complaint is substantively quite similar to her initial complaint,
but adds assertions of wrongful conduct by the Deputy Clerk of
Chautauqua County, New York.
In connection with her attempt to bring a claim based on the
FTCA,

plaintiff

filed

a

motion

for

leave

to

complete

her

administrative remedies related thereto (specifically, filing an
administrative

tort

claim).

Plaintiff

3

subsequently

filed

an

additional motion in which she claims to have filed a Notice of
Claim on Chautauqua County, and argues that the filing of said
Notice of Claim satisfies her administrative obligations under the
FTCA.
Plaintiff’s

final

motion

asks

the

Court

to

stay

these

proceedings, on the basis that the Government has violated the
Trading with the Enemy Act, Chapter 53 of Title 50 of the United
States Code.
III. Discussion
A.

Motion to Dismiss for Lack of Subject Matter Jurisdiction

The Government has moved to dismiss plaintiff’s complaint on
the basis that she has not established this Court’s subject matter
jurisdiction.

In particular, the Government argues that plaintiff

cannot establish jurisdiction based on admiralty or maritime law,
because she has not alleged that a tort occurred on navigable
waters, nor has she alleged the existence of a maritime contract.
The Government further argues that no subject matter jurisdiction
exists because plaintiff has failed to establish a waiver of the
United States’ sovereign immunity.
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”

Luckett v.

Bure, 290 F.3d 493, 496 (2d Cir. 2002)(quotation omitted).

4

“[T]he

plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.”

Id.

Here, the Court agrees with the Government that plaintiff has
failed to establish the existence of subject matter jurisdiction.
In order to establish admiralty or maritime jurisdiction, plaintiff
was required to show either that she was the victim of a tort
committed on navigable waters (see Foremost Ins. Co. v. Richardson,
457 U.S. 668, 672 (1982)) or that her claim arises out of a
contract related to maritime service or transactions (see Norfolk
S. Ry. Co. v. Kirby, 543 U.S. 14, 24 (2004)).

Her complaint, which

consists of legally meaningless nonsense, shows neither.
Plaintiff

also

has

not

established

United States’ sovereign immunity.

a

waiver

of

the

“Absent a waiver, sovereign

immunity shields the Federal Government and its agencies from suit.
Sovereign immunity is jurisdictional in nature.

Indeed, the terms

of [the United States’] consent to be sued in any court define that
court’s jurisdiction to entertain the suit.”
510

U.S.

omitted).

471,

475

(1994)

(internal

citations

and

quotation

A waiver of sovereign immunity must be “unequivocally

expressed in statutory text.”
(1996).

F.D.I.C. v. Meyer,

Lane v. Pena, 518 U.S. 187, 192

Here, nothing in plaintiff’s complaint establishes a

waiver of sovereign immunity, and the Court accordingly finds that
it lacks jurisdiction on this additional basis.

5

B.

Motion to Dismiss for Failure to State a Claim

Assuming that the Court did have subject matter jurisdiction
over the instant dispute, dismissal would still be warranted,
because plaintiff’s complaint fails to state a claim on which
relief can be granted.

In deciding a motion brought pursuant to

Rule 12(b)(6), the Court must consider whether the complaint
contains “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Courts have not hesitated to find that the claims presented by
sovereign citizens and redemptionists are “‘frivolous and a waste
of court resources.’”

Branton, 2015 WL 339749 at *3 (quoting

Muhammad v. Smith, 2014 WL 3670609, at *2 (N.D.N.Y. July 23,
2014)); see also Greene v. Pryce, 2015 WL 4987893, at *3 (E.D.N.Y.
Aug. 18, 2015) (dismissing claim based on redemptionist theories as
lacking any potential merit). The same reasoning applies with full
force to plaintiff’s claims, which lack any basis in law or fact,
and are therefore subject to dismissal pursuant to Rule 12(b)(6).
C.

Motion for Leave to Amend

Plaintiff has moved for leave to file an amended complaint and
has submitted her proposed amended complaint to the Court.
forth

above,

plaintiff’s

proposed

amended

complaint

As set
differs

substantively for her initial pleading in that it seeks to add a
6

FTCA claim based on the claimed wrongful actions of the Deputy
Clerk of Chautauqua County.
“In the ordinary course, the Federal Rules of Civil Procedure
provide that courts ‘should freely give leave’ to amend a complaint
‘when justice so requires.’”

Williams v. Citigroup Inc., 659 F.3d

208, 212 (2d Cir. 2011) (quoting Fed. R. Civ. P. 15(a)(2)).
However, “[i]t is well established that [l]eave to amend need not
be granted ... where the proposed amendment would be futil[e].”
Id. at 214 (quotation omitted).
Here,

for

the

reasons

discussed

above,

the

claims

from

plaintiff’s initial pleading that are repeated in her proposed
amended complaint are meritless.

Moreover, plaintiff’s proposed

FTCA claim is wholly without legal basis.

First, plaintiff has

failed to comply with the statutory prerequisites to bringing such
a claim.

See Adams by Adams v. United States Department of Housing

and Urban Development, 807 F.2d 318, 320 (2d Cir. 1986) (pursuant
to § 2675 of the FTCA, a plaintiff is barred from bringing suit
unless he or she has first presented the claim to the appropriate
federal agency).
Second, and perhaps more importantly, plaintiff’s claim fails
substantively.

Claims under the FTCA must be based on a wrongful

act by an employee of the Government acting in the scope of his
office or employment.

See Meyer, 510 U.S. at 477.

The Deputy

Clerk of Chautauqua County is not a federal employee, but is

7

instead an agent of the county government.

Accordingly, plaintiff

cannot base an FTCA claim on the Deputy Clerk of Chautauqua
County’s alleged wrongful conduct.
Because plaintiff’s proposed amended complaint fails to state
a cognizable claim, leave to amend would be futile.

Accordingly,

plaintiff’s motion for leave to amend is denied.
D.

Plaintiff’s Remaining Motions

In light of the Court’s dismissal of plaintiff’s complaint and
denial of her motion for leave to amend, her remaining motions are
rendered moot, and are denied as such.
CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss
(Docket No. 7) is granted. Plaintiff’s motions for leave to amend,
for leave to complete her administrative remedies, for leave to
file a supplement to her proposed amended complaint, and to stay
the proceedings (Docket Nos. 11, 15, 18, and 21) are denied.
Clerk of Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
________________________
MICHAEL A. TELESCA
United States District Judge

Dated:

October 19, 2017
Rochester, New York
8

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