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Melnitzky v. Jones

August 21, 2008

MICHAEL MELNITZKY, PLAINTIFF,
v.
PAT JONES AND JONES AND HORAN AUCTION TEAM, INC. SUED HEREIN AS JONES AND HORAN. DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff, appearing pro se, asserts claims under 42 U.S.C. §§ 1983 and 1985 for violations of his rights to due process and equal protection of the laws arising from court proceedings surrounding his divorce and subsequent executions of state court judgments that included the seizing and selling of certain property ("federal claims"). The plaintiff also alleges state law claims of conversion and those claims include both allegations that the court order seizing and selling the property amounted to theft of the plaintiff's property as well as allegations that the defendants mishandled the plaintiff's property when acting as the selected auctioneer ("state law claims").

The defendants Pat Jones and Jones and Horan Auction Team, Inc. ("Jones and Horan Gallery") have moved to dismiss all claims brought against them pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, respectively, and to enjoin the plaintiff from filing additional suits against these defendants on these issues. The plaintiff has made a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The plaintiff appears to seek a preliminary injunction enjoining the defendants from selling the property obtained by the plaintiff's former wife. Because a state court order restricts his access to his safe deposit boxes, see Melnitzky v. HSBC Bank USA, No. 06 Civ. 13526, 2007 WL 1159639, at *2 n.2 (S.D.N.Y. Apr. 18, 2007), the plaintiff also seeks access to his safe deposit boxes.

I.

When presented with motions under both Federal Rule of Civil Procedure 12(b)(1) to dismiss for lack of subject matter jurisdiction and Rule 12(b)(6) to dismiss for failure to state a claim upon which relief can be granted, the Court must first analyze the Rule 12(b)(1) motion to determine whether the Court has the subject matter jurisdiction necessary to consider the merits of the action. See Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 2000); Abrahams v. App. Div. of the Sup. Ct., 473 F. Supp. 2d 550 (S.D.N.Y. 2007).

In defending a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the Court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In considering such a motion, the Court generally must accept the material factual allegations in the complaint as true. See J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). The Court does not, however, draw all reasonable inferences in the plaintiff's favor. Id.; Graubart v. Jazz Images, Inc., No. 02 Civ. 4645, 2006 WL 1140724, at *2 (S.D.N.Y. Apr. 27, 2006). Indeed, where jurisdictional facts are disputed, the court has the power and the obligation to consider matters outside the pleadings, such as affidavits, documents, and testimony, to determine whether jurisdiction exists. See APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998); Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). In so doing, the Court is guided by that body of decisional law that has developed under Federal Rule of Civil Procedure 56. Kamen, 791 F.2d at 1011; see also HSBC Bank USA, 2007 WL 1159639, at *5.

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); Arista Records LLC v. Lime Group LLC, No. 06 Civ. 5936, 2007 WL 4267190, at *4-5 (S.D.N.Y. Dec. 3, 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atlantic Corp., 127 S.Ct. 1955, 1974 (2007); see also Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007).

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir. 2003); Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d. Cir. 1991); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d. Cir. 1991).

The pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of both Rules 12(b)(1) and 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002). Additionally, the submissions of a pro se litigant should be interpreted to "raise the strongest arguments that they suggest." Pabon v. Wright, 459, F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also HSBC Bank USA, 2007 WL 1159639, at *6.

II.

The following facts are undisputed, unless otherwise noted. Many of these facts have been presented in previous court decisions, including HSBC Bank USA, 2007 WL 1159639, at *1-5.

The plaintiff, Michael Melnitzky, was married in 1984 and divorced in 1998. During the bitter divorce proceedings, a dispute arose over whether property held in various safe deposit boxes constituted marital assets subject to equitable distribution under New York law. In Melnitzky v. Melnitzky, Index No. 300220/94 (Sup. Ct., N.Y. Co.), Justice Walter B. Tolub ordered that the safe deposit boxes be opened and inventoried. The plaintiff, found in contempt of a prior court order, was not permitted to attend the inventory, but was allowed to send a representative. See Order of J. Tolub, dated Apr. 15, 1998.

After the inventory of all the boxes was complete, Justice Tolub conducted a trial and found that much of the property in the safe deposit boxes was marital property. The plaintiff appealed the judgment to the Appellate Division, First Department, which affirmed the judgment. See Melnitzky v. Melnitzky, 726 N.Y.S.2d 649 (App. Div. 2001).

Mr. Melnitzky then brought a series of suits against several parties connected with the preceding judgment and its execution, including his ex-wife, her attorney, and the bank that conducted the inventory. In these suits, the plaintiff also brought claims of theft and conversion. See, e.g., Melnitzky v. LoPreto, 777 N.Y.S.2d 304 (App. Div. 2004); Melnitzky v. Besobrasow, 787 N.Y.S.2d 655 (App. Div. 2005); Melnitzky v. North Fork Savs. Bank, 794 N.Y.S.2d 13 (App. Div. 2005); Melnitzky v. Apple Bank for Savs., 797 N.Y.S.2d 470, 471 (App. Div. 2005); Melnitzky v. HSBC Bank USA, 823 N.Y.S.2d 128 (App. Div. 2006).

In an order dated July 1, 2004, Justice Gische granted the request of the plaintiff's ex-wife to proceed with the auction and sale of the contents of the safe deposit boxes. See HSBC Bank USA, 2007 WL 1159639, at *3. The chosen auction house, Christie's, declined to conduct the auction due to the plaintiff's alleged interference. See id., at *4. On June 7, 2006, Justice Silbermann issued an order that, among other things, granted the request of the plaintiff's ex-wife to substitute a new auction house for Christie's. (See Decision of Justice Silbermann, dated June 7, 2006 ("6/7/06 Decision of J. Silbermann"), attached as Ex. A to Compl.) Because of the plaintiff's alleged interference, Justice Silbermann ordered the name of the new auction house to remain sealed. (See 6/7/06 Decision of J. Silbermann.) The order granted the plaintiff's ex-wife and the new auction house permission to proceed with the auction and sale of the contents of the safe deposit boxes, and to conduct an inventory of the contents which was to be provided to the plaintiff. (See 6/7/06 Decision of J. Silbermann.) Given the history of the plaintiff's vexatious litigation, the plaintiff is subject to an injunction enjoining him from further litigation in state courts related to his matrimonial action without prior leave of court. See HSBC Bank USA, 823 N.Y.S.2d at 128; Apple Bank for Savs., 797 N.Y.S.2d at 471.

The plaintiff next brought the dispute over the safe deposit boxes to federal court. See Melnitzky v. HSBC, No. 06 Civ. 13526, 2007 WL 195239 (S.D.N.Y. Jan. 24, 2007); Melnitzky v. LoPreto, No.06 Civ. 13206, 2006 WL 3500016 (S.D.N.Y. Dec. 4, 2006). Because Judge Silbermann's June 7, 2006 order maintained that the name of the chosen gallery not be released, the plaintiff named the "John Doe Secret Auction Gallery" and the "John Doe Auction Gallery," respectively as defendants. (Hauser Aff. ¶7.) These "John Doe" galleries were the present defendants, Jones and Horan Gallery. (See Compl. at 3.) In both federal cases, the plaintiff alleged the same federal causes of action that are currently being asserted, namely, claims asserted pursuant to 42 U.S.C. §§ 1983 and 1985 alleging violations of his rights to due process and equal protection. See HSBC, 2007 WL 195239, at *1; LoPreto, 2006 WL 3500016, at *1. The plaintiff also alleged the state claims that are presently asserted, including conversion and theft. See HSBC Bank USA, 2007 WL 1159639 at *1; LoPreto, 2006 WL 3500016, at *1.

Both federal courts dismissed the federal claims with prejudice. In the first case, Judge Stein dismissed the plaintiff's federal claims sua sponte, including those alleged against the "John Doe Auction Gallery," on the merits. LoPreto, 2006 WL 3500016 at *4. However, Judge Stein did not reach the merits of the plaintiff's state law claims, declining to exercise supplemental jurisdiction over them. Id. In the subsequent case, this Court dismissed the asserted claims citing the principles of res judicata. HSBC, 2007 WL 195239 at *3 ("Res judicata bars the plaintiff from simply bringing the same defendants before a different judge."). After dismissing the majority of defendants, including "John Doe Secret Auction Gallery," this Court considered any claims against the remaining defendants. This Court also declined to exercise supplemental jurisdiction over the state-law claims and dismissed those claims "without prejudice." HSBC Bank USA, 2007 WL 1159639, at *11.

The plaintiff subsequently discovered the name of the auction house where the property had been placed in accordance with Justice Silbermann's June 7, 2006 order. (See Compl. at 3.) The present defendants, Jones and Horan Gallery and Pat Jones are, respectively, the auction house and its principal. (See Compl. at 3.) The plaintiff now brings this action pursuant to diversity jurisdiction, 28 U.S.C. § 1332, as well as federal question jurisdiction, 28 U.S.C. § 1331. Diversity jurisdiction is satisfied because both Pat Jones and Jones and ...


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