The opinion of the court was delivered by: Sweet, D.J.
Defendant Citibank, N.A. ("Citibank") has moved pursuant to Rules 12(b)(5), 12(b)(6), and in the alternative, 56, Fed. R. Civ. P., to dismiss the amended complaint of plaintiff pro se Gordon Jonas ("Jonas") seeking damages for Citibank's compliance with a writ of execution and transfer of social security funds in his Citibank account. Jonas has cross-moved for summary judgment and default judgment. For the reasons set forth below, the Citibank motion is granted, and the motions of Jonas are denied.
This action is a paradigm of the problems created in pro se litigation when an aggrieved individual is betrayed by his counsel and thereafter fails to meet the requirements imposed upon all litigants, in this instance, of serving the defendant with his pleading. Jonas' day in court has extended for over four years, marked by difficulty, confusion, and misunderstanding. As will be demonstrated below, empathy does not constitute compliance.
Jonas, then represented by counsel, filed this action on January 1, 2002. It was assigned to the Honorable Richard M. Berman. The complaint sought punitive and compensatory damages from Citibank arising out of its compliance with an Execution and Final Demand dated July 17, 2000 (the Execution from New York City Marshal, Henry Daley ("the Marshal")). The complaint alleged that social security and disability benefits in Jonas' Citibank account were transferred in violation of law.
According to Jonas, Jonas' former counsel, Michael Bressler ("Bressler") discontinued this action against Citibank without his knowledge or permission. Jonas has alleged that Bressler was subsequently disbarred. A notice of dismissal pursuant to Fed. R. Civ. P. Rule 41(a)(1) was signed by Judge Berman and filed with the Court on April 23, 2002.
By notice of motion dated June 18, 2002, Jonas sought leave to "reinstate" this action. By endorsed memo dated June 27, 2002, Judge Berman directed Jonas to serve Citibank with process by July 9, 2002. By letter to the Court dated July 15, 2002, with a copy to Jonas, counsel stated that Citibank was never served with the summons and complaint dated January 22, 2002. By letter dated July 17, 2002, Jonas stated that he mailed the summons and original complaint to Citibank's counsel on or about June 24, 2002. Citibank, by letter dated July 23, 2002, with a copy to Jonas, reiterated that it was never served with process.
By order dated February 20, 2003, Judge Berman reinstated the action. Jonas filed an amended complaint dated October 30, 2003 (the "Amended Complaint") without Citibank's consent or leave of the Court and mailed a copy to Citibank's counsel.
By letter to Jonas dated November 4, 2003, Citibank's counsel rejected the Amended Complaint as a nullity as not having been served consistent with the Fed. R. Civ. P. On November 6, 2003, Jonas sought further explanation of counsel's rejection of the complaint he mailed. By letter dated November 11, 2003, Citibank's counsel explained that Jonas had not effected proper service and his time to do so had expired.
On January 25, 2005, Judge Berman filed a recusal and the action was reassigned.
On April 20, 2005, a status conference was held where, again, counsel for Citibank advised that Citibank was never served with process and by order dated April 26, 2005, Jonas was "strongly encouraged" to avail himself of any assistance that can be provided to him by the Pro Se Office with respect to the proper procedures for the service of the amended verified complaint, and provided the address, telephone, and room number of that office.
On or about May 3, 2005, Citibank received, by mail, a copy of the Amended Summons dated April 23, 2005 and the Amended Complaint dated October 30, 2003 (collectively, the "Amended Pleadings").
On October 28, 2005, the motion of Citibank and the cross-motions of Jonas were marked fully submitted.
The facts are set forth in the Citibank 56.1 Statement of
Undisputed Facts and are not disputed except as noted.
On or about July 5, 2000, Citibank received a restraining notice with information subpoena dated June 28, 2000 (the "Restraining Notice") served by Jonas' judgment creditor, International Airline Employees F.C.U. ("IAEFCU") in an action entitled International Airline Employees F.C.U. v. Gordon Jonas, New York City Civil Court, Index No. 21164CV1999 (the "IAEFCU Action") in connection with a judgment in the sum of $13,798.92, entered against Jonas on June 6, 2000. On July 6, 2000, Citibank restrained account numbers 28550215 and 49146895 maintained in Jonas' name (the "Accounts") and responded to the subpoena in compliance ...