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Pisani v. Diener

March 17, 2009

LOUIS PISANI, PLAINTIFF,
v.
ASHLEY L. DIENER, ESQ., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

Plaintiff Louis Pisani ("plaintiff" or "Pisani"), brings this action against Ashley L. Diener ("Diener"), Maurice J. Kutner ("Kutner"), Harvey Rogers ("Rogers"), Michael Gale ("Gale"), (collectively, "Attorney Defendants"), Florida State Attorney Katherine Fernandez- Rundle ("Fernandez-Rundle") and Judge Deborah White-Labora ("Judge White-Labora"), (collectively, "defendants"), under 42 U.S.C. § 1983. Plaintiff also seeks to invoke the diversity jurisdiction of this Court and, construing the complaint liberally, appears to be asserting state claims against the defendants related to, among other things, fraud, legal malpractice, defamation and (with respect to one defendant) that he improperly retained money from the sale of plaintiff's house.

Defendants moved to dismiss the lawsuit plaintiff and children pain and suffering." (Id. 12(b)(4), 12(b)(5), 12(b)(6), as well as Rule 8(a), of the Federal Rules of Civil Procedure. For the reasons set forth below, pursuant to Rules 12(b)(2) and 12(b)(3), the Court agrees with defendants that personal jurisdiction is lacking as to any defendants, and venue is improper in this District, but instead of dismissing the case, the Court transfers the case to the United States District Court for the Southern District of Florida in the interest of justice pursuant to 28 U.S.C. § 1406(a).

I. BACKGROUND

A. Facts

The following facts are taken from the amended complaint and are not findings of fact by the court. The Court assumes these facts to be true for the purpose of deciding this motion and construes them in the light most favorable to plaintiff, the non-moving party. Plaintiff and his ex-wife, America Lopez ("Lopez"), were married in New Jersey in 1993. (Amended Complaint ("Am. Compl.") ¶ 1.) Lopez had a daughter from her first marriage, Tatiana Prats, and wanted two more children in her marriage with plaintiff. (Id. ¶ 4.) On or about April 2000, Lopez "left on one of her many trips to visit her mother in Miami, FL." (Id. ¶ 10.) "After three months, on or around July 2000 Plaintiff obtained a petition of habeas corpus to have the two children brought back to New York, their home state, in Nassau County venue." (Id. ¶ 11.) The amended complaint does not make clear who the "two children" were, though he is presumably referring to Anthony Pisani and Gabriella Pisani, who are referenced later in the amended complaint. (Id., Exs. A-B.)

Plaintiff alleges that, on advice of counsel, plaintiff began divorce proceedings in New York on October 11, 2000. (Id. ¶ 13.) In January 31, 2001, Lopez filed a petition for dissolution of marriage in the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida. (Plaintiff's Addendum of Exhibits filed July 7, 2008, Ex. G.) Around this time, Lopez began a proceeding in Miami-Dade County before Judge Deborah White-Labora to obtain a temporary injunction for protection against domestic violence against plaintiff. (Id. ¶¶ 16-17; Plaintiff's Memorandum of Law in Opposition, Ex. 6.) The injunction was entered on agreement between counsel for the parties on October 27, 2001. (Plaintiff's Memorandum of Law in Opposition, Ex. 6.) Plaintiff alleges that his counsel, Ashley Diener, "intentionally, negligently was in breach of duty to me when he 'agreed' to the temporary injunction," and "plaintiff requests that Ashley Diener be disbarred." (Id. ¶ 17.) Plaintiff alleges that the result of the injunction in Florida was "the parental alienation syndrome." (Id. ¶ 18.)

The amended complaint alleges that Lopez then took the children to California and then Mexico. (Id. ¶ 19.) Plaintiff alleges that Lopez then retained Kutner to represent her, and that Kutner is a contributor to the election campaign of Judge White-Labora. (Id. ¶ 20.) Plaintiff alleges that Kutner made defamatory statements about plaintiff and the children. (Id. ¶ 22.)

The complaint alleges that plaintiff was concerned about the well-being of his children and, therefore, tried to contact the Lopez family. (Id. ¶ 23.) Though the amended complaint is unclear about this, it appears that this was in violation of his injunction and led to proceedings against plaintiff. (Id. ¶¶ 23-24.) Plaintiff retained Gale for the evidentiary hearing held before Judge Harnables. Plaintiff alleges that, "through [Gale's] negligence I was arrested in Feb. 2001. He failed then to defend me at the 2nd evidentiary hearing. 'I should have expected that' was Gales' comment!" (Id. at 24.)

Florida State Attorney Katherine Fernandez- Rundle charged the plaintiff with aggravated stalking on or around July 2001 in Florida state court. (Id. ¶ 25.) The plaintiff alleges that he did not commit aggravated stalking, but rather was just trying to find out where his children were. (Id. ¶¶ 26-28.) In December 2002, plaintiff alleges that he went to a day care center "presumably with authority to see his children and give them gifts for Christmas." (Id. ¶ 29.) Plaintiff alleges that he was "arrested for violating the injunction even though according to Ken Kaplan Esq plaintiff had permission to see children. He was negligent." (Id. ¶ 30.) Plaintiff further alleges that "Judge Deborah White-Labora has acted maliciously with no finding of fact to cause plaintiff and children pain and suffering." (Id. ¶ 31.) In December of 2007, plaintiff filed a motion to vacate the injunction against him, but his motion was denied by Judge White-Labora. (Id. ¶ 32.)

Plaintiff alleges that he has not had any unsupervised contact with his children for the past seven years, that he has had his house taken from him, and that he was imprisoned "because of the negligent, malicious intentions of these defendants." (Id. ¶ 33.) Specifically, Plaintiff alleges that Rogers accused plaintiff of disparaging remarks against Cubans, is a campaign contributor to Judge White-Labora, and communicated ex parte with Judge White- Labora. (Id. ¶¶ 34-35.) Plaintiff alleges that Judge White-Labora discriminated against him on the basis of his national origin and gender, in that she "did not vacate injunction based on 'mistreatment' of day care worker who spoke only Spanish. I don't speak Spanish." (Id. ¶ 36.) Plaintiff generally alleges that defendants have discriminated against him on the basis of gender and national origin, in violation of 42 U.S.C. § 1983.

B. Procedural History

Plaintiff filed the complaint in this action on December 5, 2007. Plaintiff filed an amended complaint on February 14, 2008. Defendant Rogers filed a motion to dismiss plaintiff's amended complaint on March 31, 2008. Defendant Kaplan moved to adopt Defendant Rogers' motion to dismiss on April 7, 2008. On April 18, 2008, defendants Judge Labora-White and Fernandez-Rundle filed a motion to dismiss plaintiff's amended complaint. On May 16, 2008, defendant Diener filed a motion to dismiss plaintiff's amended complaint. Defendant Kutner filed a motion to dismiss plaintiff's amended complaint on June 5, 2008. Defendant Gale also filed a motion to dismiss plaintiff's amended complaint on June 5, 2008. On June 16, 2008, plaintiff filed an opposition to the motions for dismissal. On June 25, 2008, defendant Rogers filed a reply. On June 27, 2008, defendant Diener filed a reply. On July 7, 2008, ...


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