United States District Court, E.D. New York
January 26, 2004.
LINDA SHARP and SHARP REALTY, LLC, Plaintiffs, -against- JOHN C. BIVONA, NEIL R. CAHN, KENNETH J. GLASSMAN, MICHAEL SHARP, and JOHN DOE #1 through #10, these names being fictitious, the actual names and addresses being unknown, each named party individually and jointly and in their official capacity, if any, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
On February 24, 2003, Linda Sharp ("Sharp" or the "plaintiff") and
Sharp Realty, LLC ("Sharp Realty"), a limited liability corporation
incorporated under the State of New York, commenced this action against
John C. Bivona ("Bivona"), Neil R. Cahn ("Cahn"), Kenneth J. Glassman
("Glassman"), and her husband Michael Sharp ("husband"), alleging 16
causes of action. Presently before the Court are the following motions:
(1) a motion by defendant Bivona to dismiss the complaint pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
("Fed.R. Civ. P."); and (2) a motion by defendant Glassman for summary
judgment dismissing the complaint.
The following facts are taken from the complaint which the Court notes
is redundant and somewhat confusing. In 1999, Michael Sharp commenced a
matrimonial action against the plaintiff in the Suffolk County Supreme
Court. The complaint describes various incidents from the divorce
proceedings involving an apartment complex in Brooklyn that the plaintiff
and Michael Sharp purchased with their marital assets in 1995.
Sharp claims that, on March 1, 2001, there was a "backroom deal made in
chambers of Justice Daniel J. Loughlin . . . in which full control
of the family business surreptitiously was turned over to [her] husband"
Michael Sharp without the plaintiff's knowledge and consent. Sharp
further claims that this "backroom deal" was implemented by Michael
Sharp, his attorney Cahn, and her attorney Glassman so as "to deprive the
plaintiff of monies attributable to the Brooklyn property."
The plaintiff further alleges that, although Glassman was the
plaintiff's attorney in the divorce proceedings, he was appointed as
receiver as a result of the "backroom deal." Sharp contends that Glassman
refused "to provide an accounting of his financial activities as receiver
with respect to gross receipts, business expenditures, and the like. . .
. " The plaintiff further claims that, in October or November 2001,
Justice Loughlin signed an ex parte order authorizing Glassman to
continue to serve as receiver. On an unspecified date, after the
plaintiff objected in open court to the "backroom deal" and the ex parte
order, Justice Loughlin recused himself. Shortly thereafter, without any
explanation, two other justices recused themselves from the plaintiff's
matrimonial proceedings. Finally, the divorce action was reassigned to
Justice John C. Bivona.
Sharp alleges that Justice Bivona knew that Cahn and Glassman were
misappropriating funds from the marital business. In August 2002, Justice
Bivona issued an order relieving a temporary receiver, Harvey McClelland,
who had been appointed by Justice Loughlin, and a second order appointing
a new temporary receiver, Everett W. George. Despite these orders, the
plaintiff claims that Justice
Bivona permitted Glassman to act as receiver until December 2002. Sharp
further alleges that Justice Bivona knew that Glassman collected but
failed to account for receivership assets; dissipated assets of the
marital accounts; failed to provide her with information; failed to
account or make disclosures to the court; and failed to deposit
receivership funds in an interest-bearing account.
In addition, the plaintiff asserts that "on November 14, 2002, January
6, 2003, January 15, 2003, January 27, 2003, [the] Defendant John Bivona
failed to be patient, dignified, and courteous to [the plaintiff but]
instead [sic] threatened her, subjected her to mistreatment and possible
dispossession of property contrary to his responsibilities. . . . "She
also claims that Justice Bivona "failed to order complete and full
discovery . . . and failed to take or initiate appropriate disciplinary
measures against [the] lawyers in this case for unprofessional conduct"
and deprived the plaintiff of her "appellate due process rights."
Furthermore, Sharp alleges that between November 2002 and January 2003,
Justice Bivona initiated several ex parte communications with the other
Among other things, the plaintiff alleges a cause of action for fraud
and claims that she was denied due process and equal protection. Sharp
seeks monetary damages in the amount of more than $58,000,000 and also
seeks an injunction against Justice Bivona preventing him from presiding
over her divorce proceeding.
A. As to Glassman's Motion for Summary Judgment
As an initial matter, the Court notes that Glassman's papers in support
of his motion for summary judgment are not in compliance with Local
Rule 7.1 which reads:
Except as otherwise permitted by the court, all
motions and all opposition thereto shall be supported
by a memorandum of law, setting forth the points and
authorities relied upon in support of or in opposition
to the motion, and divided, under appropriate
headings, into as many parts as there are points to be
determined. Willful failure to comply with this rule
may be deemed sufficient cause for the denial of a
motion or for the granting of a motion by default.
This Rule is not a mere formality. Rather, this rule must be observed to
inform a party of the factual basis of his adversary's arguments. In
addition, in failing to comply with this rule, it places the burden on
the Court to construct the legal arguments and to conduct the legal
research that is the responsibility of the parties. See V.W. Broad v. DKP
Corp., No. 97 CV 2029, 1998 U.S. Dist. LEXIS 12942, at *3 (S.D.N.Y. Aug.
19, 1998) ("Plaintiff's failure to oppose [the motion at issue] would
require the [the Court] to construct plaintiff's legal arguments for him
in order to reach the merits of defendant's motion. This is an
unacceptable burden to place upon a court."). Thus, because of Glassman's
noncompliance with Local Rule 7.1, his motion for summary judgment is
denied without prejudice with leave to refile upon compliance with the
Local Rules and the Court's Individual Rules.
B. As to Justice Bivona's Motion to Dismiss
1. Standard of Review for Motion to Dismiss
a. Rule 12(b)(1)
When considering a motion to dismiss for lack of subject matter
jurisdiction under Rule 12(b)(1), the Court may consider affidavits and
other materials beyond the pleadings to resolve the jurisdictional
question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n.6 (2d
Cir. 2001); Antares Aircraft, L.P. v. Fed. Rep. of Nigeria, 948 F.2d 90,
96 (2d Cir. 1991), vacated on other grounds, 505 U.S. 1215 (1992); Exch.
Nat'l Bank of Chicago v. Touce Ross & Co., 544 F.2d 1126, 1130 (2d
Cir. 1976). Under Rule 12(b)(1), the court must accept as true all
material factual allegations in the complaint but will not draw
inferences favorable to the party asserting jurisdiction. See Shipping
Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Atl. Mut.
Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.
1992). Hearsay statements contained in the affidavits may not be
considered. See Kamen v. AT&T, 791 F.2d 1006, 1011 (2d Cir. 1986).
b. Rule 12(b)(6)
In deciding a motion to dismiss under Rule 12(b)(6), a district court
must "accept all of the plaintiff's factual allegations in the complaint
as true and draw inferences from those allegations in the light most
favorable to the plaintiff." Desiderio v. National Ass'n of Sec.
Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999).
A complaint should not be dismissed "unless it appears beyond doubt
that the plaintiff
can prove no set of facts in support of his claim which would entitle him
to relief." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130,
138 (2d Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,
2 L.Ed.2d 80, 78 S.Ct. 99 (1957)). "The issue is not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d
Cir. 1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1999)).
c. The Plaintiff's Pro Se Status
The Court is mindful that the plaintiff is proceeding pro se and that
her submissions should be held "`to less stringent standards than formal
pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9,
66 L.Ed.2d 163, 101 S.Ct. 173 (1980) (per curiam) (quoting Haines v.
Kerner, 404 U.S. 519, 520, 30 L.Ed.2d 652, 92 So. Ct. 594 (1972)).
District courts should "read the pleadings of a pro se plaintiff
liberally and interpret them `to raise the strongest arguments that they
suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, the
Court is also aware that pro se status "does not exempt a party from
compliance with relevant rules of procedural and substantive law. . . ."
Traguth v. Zuck, 710 F.3d 90, 95 (2d Cir. 1983) (internal quotations
and citation omitted).
2. Rooker-Feldman Doctrine
To the extent that Sharp seeks to challenge the state court's
determinations, this Court lacks subject matter jurisdiction to decide
the claims under the Rooker-Feldman doctrine. See Rooker v. Fidelity
Trust Co., 263 U.S. 413, 68 L Ed. 362, 44 S.Ct. 149 (1923); District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 75 L.Ed.2d 206,
103 S.Ct. 1303 (1983). Under this doctrine, "federal district courts lack
jurisdiction to review state court decisions whether final or
interlocutory in nature," Gentner v. Shulman, 55 F.3d 87, 89 (2d Cir.
1995), and "federal review, if any, can occur only by way of a certiorari
petition to the Supreme Court," Moccio v. New York State Office of Court
Admin., 95 F.3d 195, 197 (2d Cir. 1996). "Such jurisdiction is lacking
because within the federal system, only the Supreme Court may review a
state court judgment." Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d
This doctrine also prohibits a district court's review of state court
judgments to claims that are "inextricably intertwined" with a state
court's determinations. Kropelnicki v. Siegel, 290 F.3d 118, 128 (2d
Cir. 2002). A claim is inextricably intertwined with the state court
judgment when "at a minimum,. . . a federal plaintiff had an opportunity
to litigate a claim in a state proceeding (as either the plaintiff or
defendant in that proceeding),. . . [and] the claim . . . would be barred
under the principles of preclusion." Kropelnicki v. Siegel, 290 F.3d 118,
128 (2d Cir. 2002) (internal quotations and citation omitted). In
addition, a plaintiff cannot circumvent
Rooker-Feldman by recasting her claim as a federal civil rights
violation. See Davidson v. Garry, 956 F. Supp. 265, 268-69 (E.D.N.Y.
There is no doubt that the plaintiff's claims for constitutional and
civil rights violations and fraud arise from her matrimonial proceedings
and could have been raised in state court. "The fact that [a] plaintiff
alleges that the state court judgment was procured by fraud does not
remove his claims from the ambit of Rooker-Feldman." Parra v. Greenpoint
Mortgage Co., No. 01 CV 2010, 2002 U.S. Dist. LEXIS 25281, at *5-6 (Mar.
26, 2002) (quotations omitted). Indeed, even if the orders by the state
court were wrongfully procured, as the plaintiff alleges, the orders
remains in full force and effect until they are reversed or modified by
an appropriate state court. Id. at 6. Put simply, the plaintiff cannot
enter through the back door to evade the Rooker-Feldman doctrine in order
to get into federal court. As such, this Court lacks subject matter
jurisdiction over the plaintiff's claims against Justice Bivona.
3. Absolute Judicial Immunity
In addition, the claims against Justice Bivona must be dismissed under
the doctrine of absolute judicial immunity. It is well settled that
judges are absolutely immune from suit for any actions taken within the
scope of their judicial responsibilities or within his or her
jurisdiction. See Mireles v. Waco, 502 U.S. 9, 9-12, 116 L.Ed.2d 9,
112 S.Ct. 286 (1991); Maestri v. Jutkofsky, 860 F.2d 50, 52-53 (2d Cir.
1988). The rule of absolute judicial immunity is necessary because
"principled and fearless
decision-making" will be compromised if a judge "fears that unsatisfied
litigants may hound him with litigation charging malice or corruption."
Vasile v. Dean Witter Reynolds Inc., 20 F. Supp.2d 465, 489 (E.D.N.Y.
1998) (internal quotations and citation omitted).
The Supreme Court has emphasized that the scope of the judge's
jurisdiction must be construed broadly where the issue is the immunity of
the judge. Stump v. Sparkman, 435 U.S. 349, 356-57, 55 L.Ed.2d 331,
98 S.Ct. 1099 (1978) (citation omitted). Absolute immunity exists "however
erroneous the act may have been, however injurious in its consequences it
may have proved to the plaintiff" and "despite any `informality with
which [the judge] proceeded,' and . . . an ex parte feature of the
proceeding." Cleavinger v. Saxner, 474 U.S. 193, 200, 88 L.Ed.2d 507,
106 S.Ct. 496 (1985) (quoting Stump, 435 U.S. at 363 and n.12). Indeed, the
doctrine of judicial immunity is so expansive that it is overcome only
when (1) the action is nonjudicial, i.e., not taken in the judge's
judicial capacity; or (2) the action, although judicial in nature, is
performed in the complete absence of all jurisdiction. Mireles, 502 U.S.
Here, Sharp's claims against Justice Bivona stem from his judicial
decisions while he presided over her matrimonial proceedings. Nothing in
the record suggests that Justice Bivona was without jurisdiction over the
proceedings or that he acted outside his judicial capacity. See Vasile,
20 F. Supp.2d at 489. That the plaintiff
alleges that the proceedings were conducted in an erroneous and malicious
manner does not abrogate the immunity. Stump, 435 U.S. at 363 n.12.
Thus, Justice Bivona is entitled to absolute judicial immunity against
damages claims resulting from the acts of which the plaintiff complains.
Accordingly, all the claims against Justice Bivona are dismissed.
In addition, Justice Bivona enjoys absolute immunity from the
plaintiff's request for an injunction enjoining him from presiding over
her divorce proceeding. In October of 1996, Congress amended Section 1983
to bar injunctive relief "in any action brought against a judicial
officer for an act or omission taken in such officer's judicial capacity
. . . unless a declaratory decree was violated or declaratory relief was
unavailable." 42 U.S.C. § 1983; Federal Courts Improvement Act of
1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847, 3853, see also
Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999); Hill v. Sciarrotta,
140 F.3d 210, 215 (2d Cir. 1998). Because Sharp does not allege and the
record does not suggest that a declaratory decree was violated or that
declaratory relief was unavailable, the claims for injunctive relief
against Justice Bivona must also be dismissed. Accordingly, the motion to
dismiss the complaint against Justice Bivona is granted in its entirety.
C. The Pro Se Plaintiff's Representation of Sharp Realty, LLC
There exists a longstanding rule that a corporation may not proceed pro
se in federal court, but must appear by an attorney. See Rowland v.
Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201-02,
113 S.Ct. 716, 721 (1993). Courts which have refused to allow corporations to
appear pro se have long recognized that "[a] corporation is an artificial
entity which can act only through it agents." See Eagle Associates v.
Bank of Montreal, 926 F.2d 1305, 1308 (2d Cir. 1991) (citing In re
Hollidays's Tax Services, Inc., 417 S. Supp. 182, 185 (E.D.N.Y. 1976)).
Thus, because Sharp Realty is unrepresented by counsel, it may not
proceed in this action. As such, Sharp Realty is afforded thirty days from
the date of this order to retain an attorney. Failure to retain an
attorney within this time will result in the dismissal of Sharp Realty,
LLC as a party in this action.
Based on the foregoing, it is hereby
ORDERED, that defendant Glassman's motion for summary judgment is
DENIED; and it is further
ORDERED, that motion to dismiss the complaint in its entirety against
defendant Justice Bivona is GRANTED; and it is further
ORDERED, that plaintiff Sharp Realty, LLC is directed to retain an
attorney within thirty days of the date of this order; and it is further
ORDERED, the Clerk of the Court is directed to dismiss Sharp Realty,
LLC from this action if it does not retain counsel within the time
prescribed above; and it is further
ORDERED, that the Clerk of the Court is directed to amend the caption
of this case to read as follows:
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