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Glatzer v. Barone

May 1, 2009


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge


Pro se plaintiff Bernard H. Glatzer ("Glatzer")*fn1 brought this action pursuant to 42 U.S.C. § 1983 ("§ 1983") seeking permanent injunctive relief directing defendants to hear and adjudicate certain actions pending before them in New York State courts. Defendants are Justice John A. Barone ("Barone") and Justice Larry S. Schachner ("Schachner") of the Supreme Court of the State of New York, Bronx County, and Jonathan Lippman ("Lippman"), then Presiding Justice of the New York State Supreme Court, Appellate Division, First Department (collectively "Defendants"). Defendants move to dismiss the action, challenging this Court's subject matter jurisdiction under the Rooker-Feldman doctrine, see Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), as well as urging abstention under Younger v. Harris, 401 U.S. 37 (1971). By Order dated March 30, 2009, the Court granted the Defendants' motion and dismissed the complaint. On that occasion the Court indicated that it would state its findings, reasoning, and conclusions in a subsequent Decision and Order. Accordingly, for the reasons stated below, Defendants' motion is GRANTED. Because the Court views this action as presenting such a clear and compelling case for its abstention from exercising jurisdiction, it would refrain from doing so on its own motion even if Defendants' motion were not before it. See Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976) (district court may raise abstention sua sponte).


This case is about a bad idea. Glatzer asks this Court to issue injunctions to compel state trial judges who dismissed two of his lawsuits to hear and adjudicate his actions again, as well as to restrain a state appellate court from undertaking further proceedings in connection with Glatzer's litigation. Since 1793, in accordance with a general principle decreed by congressional legislation and Supreme Court decisions for the preservation of this country's dual system of government, federal courts have been instructed not to grant injunctive relief to interfere with state judicial functions, with rare exceptions justified only in the most extraordinary exigencies. Still, despite this sound, longstanding constraint on federal judicial power, litigants, ever a hopeful, undaunted and creative lot, persist in testing the strength and outer limits of the policy. If nothing else, experience demonstrates that bad ideas, like weeds, are tenacious and resilient, endowed with an uncanny trait that, as if organic, enables them to find new fertile and receptive minds in which to take root. For courts entrusted to protect the constitution of the organic whole, this challenge recalls Voltaire's counsel for us all to eradicate "l'infâme," and cultivate our garden, so as to weed out potential enduring menaces. The first step in this task is to recognize any noxious notion for what it is, a bad idea, a species of unwanted growth.

Glatzer filed this action in this Court on January 22, 2009 and had served all three Defendants by January 28, 2009. Because Defendants had not answered the complaint by the due date of February 17, 2009, Glatzer sought and obtained from the Clerk of Court a Clerk's Certificate of Default, issued on February 20, 2009. By letter to the Court dated February 23, 2009, Defendants, represented by Anthony Tomari ("Tomari") of the Office of the New York State Attorney General, requested a conference to review a motion by Defendants to vacate the default and to dismiss the action. (See Letter to Hon. Victor Marrero from Anthony J. Tomari, dated February 23, 2009 (the "February 23 Letter.")) Tomari indicated that he and Glatzer had spoken on February 12, 2009 and had agreed to continue discussions before either side would take further action with respect to the complaint. Tomari's letter also expressed three legal theories as grounds supporting dismissal of the complaint: the Rooker-Feldman doctrine barring exercise of the Court's subject matter jurisdiction over this action by reason of certain prior state court proceedings Glatzer had litigated in state courts; abstention under general principles of comity, equity and federalism pursuant to Younger; and the restriction in § 1983 prohibiting federal courts from issuing injunctions against a judicial officer unless the judicial officer has violated a declaratory judgment. See Huminsky v. Corsones, 396 F.3d 53, 74 (2d Cir. 2005). By memo-endorsed Order dated February 25, 2009 on the February 23 Letter, the Court scheduled a conference for March 13, 2009 to address the matters raised in Defendants' February 23 Letter.

Glatzer responded to Tomari's February 23 Letter by letter to the Court dated February 25, 2009 in which he presented his version of the conversations between him and Tomari. (See Letter to Hon. Victor Marrero from Bernard H. Glatzer, dated February 25, 2009 (the "February 25 Letter.")) He indicated that Tomari was confused about the applicable time for filing Defendants' answer. Tomari apparently thought the deadline was thirty rather than twenty days from the filing of proof of service, and undertook to communicate with Glatzer again by February 19. Because Glatzer did not hear from Tomari on that date, he proceeded to request issuance of a Clerk's Certificate of Default on February 20, 2009. Glatzer again communicated with the Court by letter on March 9, 2009, where he opposed Defendants' motions to vacate the Certificate of Default and to dismiss the complaint, and sought leave to move for entry of a default judgment. (See Letter to Hon. Victor Marrero from Bernard H. Glatzer, dated March 9, 2009 (the "March 9 Letter.")) In that letter Glatzer addressed Defendants' arguments in support of dismissal under the authority of Rooker-Feldman, Younger and Huminski. Specifically, he pointed to sections of his complaint in which he had anticipated and responded at length to those objections.

By memo-endorsed Order dated March 9, 2009 on Glatzer's March 9 Letter, the Court rescheduled the March 13 conference to March 20 and indicated that on the adjourned date it would consider the matters raised by Glatzer's March 9 Letter and "hear argument" on Defendants' motion to dismiss. (Memo-Endorsed Order dated March 9, 2009.)

By letter dated March 13, 2009 Defendants responded to Glatzer's March 9 letter. (See Letter to Hon. Victor Marrero from Anthony J. Tomari, dated March 13, 2009 (the "March 13 Letter.")) They reiterated their view that the Rooker-Feldman and Younger doctrines compelled dismissal, and, as an additional argument, made reference to the Domestic Relations Exception to federal jurisdiction.*fn2 See Elk Grove Unified Sch. Dist v. Newdow, 542 U.S. 1 (2004).

Finally, Glatzer wrote to the Court on March 15, 2009 acknowledging that the subjects to be addressed at the March 20 proceeding were Defendants' motions to vacate the Certificate of Default and to dismiss the complaint and Glatzer's motion for entry of judgment by default. (See Letter to Hon. Victor Marrero from Bernard H. Glatzer, dated March 15, 2009 (the "March 15 Letter.")) Glatzer further proposed that the Court also consider his application for a preliminary injunction as stated in his complaint's prayer for relief.

Glatzer's March 15 Letter mentioned certain complications and actions taken by Defendants in the state court appellate proceedings allegedly stemming from uncertainties concerning the status of Defendants' default in the instant case. The Court responded by memo-endorsed Order dated March 16, 2009 on the March 15 Letter. It denied Glatzer's request for issuance of a default judgment and reiterated that the remaining matters would be addressed at the March 20, 2009 proceeding. The Court deemed entry of judgment by default unwarranted at that time for several reasons: Defendants' appearance in the action represented by Tomari; the discussions between Tomari and Glatzer prior to the date Defendants' answer was due; Tomari's apparent misunderstanding of the deadline for filing an answer, a circumstance that persuaded the Court that Defendants' failure to answer was not willful; and Defendants' proffer of what the Court considered meritorious defenses. See Pecarsky v., Ltd., 249 F.3d 167, 171 (2d Cir. 2001).

At the proceeding on March 20, 2009 the Court heard the parties' arguments on Defendants' motion to dismiss on the bases of the Rooker-Feldman and Younger doctrines. Glatzer challenged those theories as grounds for dismissal, essentially for the reasons stated in his complaint as well as the March 9 and March 15 Letters. In particular, he argued that in a prior related action in this Court, Judge Kimba Wood had ruled that Rooker-Feldman did not apply to bar exercise of federal jurisdiction over Glatzer's § 1983 claims.

At the hearing the Court indicated that it would grant Defendants' motion. In so doing, it considered the parties' arguments and their written submissions, including Glatzer's 37-page complaint, portions of which, the Court noted, would be more properly characterized as a memorandum of law, including extensive anticipatory legal argument regarding the Rooker-Feldman and Younger doctrines. Accordingly, for the reasons stated below, on Defendants' motion to dismiss the complaint, as well as on the Court's own action, the Court dismisses Glatzer's complaint in this action.


Glatzer alleges in his complaint that Barone is the Presiding Justice in an action Glatzer filed in New York State Supreme Court, Bronx County, entitled Glatzer v. Bear, Stearns & Co., Inc., Index No. 21663-2004 (the "Bear Stearns Action"). He further asserts that Schachner is the Presiding Justice in an action Glatzer filed in New York State Supreme Court, Bronx County captioned Glatzer v. Cardozo, Index No. 21401-2005 (the "§ 1983 Action"). Glatzer's § 1983 Action had previously been removed to this court but remanded by Judge Wood to the state court because of procedural defects, despite her finding, according to Glatzer, that the Rooker-Feldman doctrine was inapplicable to preclude federal jurisdiction over his § 1983 claims. Regarding Lippman, Glatzer states that Lippman was named as a defendant in this case in his capacity as the Presiding Justice of the State Supreme Court, Appellate Division, First Department (the "Appellate Division")*fn3 "in the event Glatzer needs interim relief to effectuate Justice Barone's and Justice Schachner's compliance with this action's federal order." (Compl. ¶ 4.)

Glatzer alleges that in connection with the Bear Stearns Action, Barone entered an order of dismissal on January 23, 2008 in which he "refused to hear and adjudicate" eight-andone-half of the nine causes of action Glatzer had asserted in the suit, as evidenced by the absence of any mention of those causes of action in the dismissal order. (Id. ¶ 12.) He claims that he has a fundamental due process right and a valid property interest under the Fourteenth Amendment to have all nine of his claims heard and adjudicated, and that Barone's refusal to adjudicate all of Glatzer's causes of action violated the Fourteenth Amendment in that the decision was arbitrary, capricious and irrational. Glatzer further asserts that Barone should have recused himself upon Glatzer's motion alleging statutory conflict of interest under New York Judiciary Law § 14 and 22 NYCRR §§ 100.2, 100.3, and 100.4 because of certain statements Barone made in open court allegedly expressing an interest in joining the law firm representing Bear Stearns in that litigation. He states that Barone improperly prevented Glatzer from taking a critical deposition in the Bear Stearns Action by expediting his ruling on the motion to dismiss so as to render the deposition moot. Glatzer finally claims that Barone's dismissal was grounded solely on erroneous reliance on and failure to adhere to rulings by judges of this Court rendered in previous federal suits by Glatzer arising from disputes related to the Bear Stearns Action.

With respect to Schachner, Glatzer alleges that Schachner similarly refused to hear and adjudicate Glatzer's claims in the § 1983 Action in which Glatzer had alleged collusion by the defendants named in that case to deprive him of his parental due process rights. Schachner had issued an order of dismissal of the § 1983 Action on March 24, 2008. Glatzer alleges that in so ruling Schachner based his decision upon two "invalid excuses" grounded on the collateral estoppel effect of certain judgments rendered by federal and state courts. (Id. ¶ 52.) Specifically, Glatzer states that Schachner refused to adhere to contrary orders issued by two judges of this Court on related actions Glatzer had filed here, and threatened "severe sanctions" if Glatzer brought those federal court orders to his attention. (Id.) Glatzer alleges that Schachner's refusal to adhere to pertinent federal court orders constitutes a violation of the Supremacy Clause of the United States Constitution, violations for which he contends § 1983 provides an enforceable remedy through federal court injunction.

As relief for these alleged violations, Glatzer asserts that declaratory relief is not available to redress Defendants' past refusals to hear and adjudicate his claims in the Bear Stearns Action and the § 1983 Action. Consequently, he argues that injunctive relief is the only effective remedy to compel Barone and Schachner to fully hear and adjudicate his actions, to adhere to federal court orders and to recuse themselves from those cases.

Anticipating Defendants' answer, Glatzer argues at length in his complaint that the Younger doctrine should not be invoked to justify abstention because no important state interest is implicated: (1) in the refusals by Barone and Schachner to hear and adjudicate Glatzer's claims; (2) in their not recusing themselves in view of the conflicts of interest Glatzer alleges they labored under that affected their decisions; and (3) in their conspiring with the defendants in the underlying state court actions to cover up numerous alleged improprieties. Glatzer claims that adequate opportunity to appeal the dismissal orders does not exist in state courts because of extreme resentment against him by Barone and Schachner, and that exceptional circumstances present in this case support federal judicial intervention.

Glatzer appealed the dismissal orders issued by Barone and Schachner to the Appellate Division and moved for consolidation of the two appeals, as well as for an enlargement of time to fully inform the appellate court of the scope of the alleged constitutional violations Barone and Schachner had committed. Glatzer alleges that by Order dated November 6, 2008 the Appellate Division granted an enlargement of less than one month to perfect his appeals but that it "otherwise denied" the motion as to the constitutional matters. (Id. ¶ 104) (emphasis in original). Upon Glatzer's request for reconsideration, the Appellate Division on December 23, 2008 granted the motion "only to the extent" of further extending the time for appeal perfection. (Id.) (emphasis in original). Glatzer construes the conditional language in the granting of his reconsideration motion to indicate that the Appellate Division does not wish to hear, and in fact "wishes to ignore" any of the constitutional issues, challenges and claims presented in his appeals, as well as the alleged constitutional violations and conflicts of interest manifested in Barone's and Schachner's conduct. (Id.) (emphasis in original). On this basis, Glatzer concludes that no relevant state court appeal is available to him in this case.

In his prayer for relief, Glatzer petitions the Court to issue a permanent injunction: (1) directing Barone to hear and adjudicate Glatzer's claims in the Bear Stearns Action and to comply with applicable federal court orders, which Glatzer states Barone could do by recusing himself from the case; (2) directing Schachner to hear and adjudicate Glatzer's claims in the § 1983 Action and to comply with applicable federal court orders; and (3) staying Barone's and Schachner's dismissal orders, including appeals of any relevant judgments, pending this Court's ruling on Glatzer's request for a permanent injunction.

Ordinarily, in reviewing a motion to dismiss, the Court should first address grounds that challenge its subject matter jurisdiction because, absent authority to adjudicate, the Court lacks a legal basis to grant any relief, or even consider the action any further. See Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) ("Determining the existence of subject matter jurisdiction is a threshold inquiry and a claim 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.") (internal citations and quotation marks omitted); Can v. United States, 14 F.3d 160, 162 n.1 (2d Cir. 1994) ("We appreciate that in most instances the question whether a court has subject-matter jurisdiction is, conventionally and properly, the first question a court is called on to consider."). Here, Defendants assert the absence of subject matter jurisdiction by application of the Rooker-Feldman doctrine. The Court does not rely on this ground by reason of substantial ambiguities it encountered in the leading Second Circuit case controlling ...

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