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Allen v. Roth

September 25, 2009


The opinion of the court was delivered by: Denise Cote, District Judge


Plaintiffs, who are officers in two music companies, have alleged that their landlord Gordon Roth Development Corporation ("GRDC"), its owner, Gordon Roth, and his son, Robert Roth (collectively, "Roth Defendants"), illegally evicted the plaintiffs from their office and destroyed their property, including master sound recordings, in the process of the eviction. The Roth Defendants have moved to dismiss the amended complaint pursuant to Rules 12(b)(1) and (6), Fed. R. Civ. P., or, in the alternative, for summary judgment pursuant to Rule 56, Fed R. Civ. P. For the following reasons, their motion is granted under Rule 12(b)(6), Fed. R. Civ P.


The following facts are taken from the amended complaint. The plaintiffs, Ira J. Allen, Richard Cisco, Milton Turner, and Cyril Young, are officers in Bun-Bun Music, Inc. ("Bun-Bun") and B-Boy Records and Associate, Inc. ("B-Boy"). GRDC, a New York corporation, is the landlord of the office at issue in this lawsuit, which is located on the third floor of 11-13 Bruckner Boulevard in Bronx, New York ("the office").

On July 12, 2008, an unidentified white male entered the office and asked Young if the plaintiffs intended to move out that day. Young replied in the negative, and the unidentified man next asked to speak with Allen. Young demanded that the unidentified man produce identification, and the man then identified himself as "Robert [Roth]," the "landlord." Robert Roth told Young that he was going to "tak[e] some stuff from the back rooms." Roth then departed. Ten minutes later, Young observed a truck placing a dumpster outside the office. Young left to go to a restaurant with plaintiff Allen. When they returned forty-five minutes later, Young and Allen found much of their property from the office in the dumpster, including CDs and cassettes containing master recordings. They went upstairs to the office and, upon discovering that the door had been broken into and their property was missing, called 911, reporting to the operator that their office had been invaded by the landlord who was also destroying and stealing their property. They asked the 911 operator to send the police.

Young then encountered five men just outside the office and demanded that they produce an eviction warrant. One of them, who identified himself as "Eddie," responded that "you owe us money." Young called 911 and repeated Eddie's response to the operator. Eddie and another man pushed Young out of the way and entered the office. The two men proceeded to ransack the office, throwing computer equipment and paper on the ground, and yelling "you owe us rent!" Young began calling 911 repeatedly and ran downstairs, where he flagged down a police car. After Young showed the police officer plaintiffs' property, now in the dumpster, the police officer asked Robert Roth whether he had a warrant to evict the plaintiffs. When Robert Roth replied in the negative, the police officer told Robert Roth to cease dispossessing plaintiffs' property immediately. As Robert Roth and the police officer entered the elevator leading up to the office, another police car arrived on the scene. Young showed the dumpster to the newly arrived police officers, and the officers then went upstairs to the office to observe the condition of plaintiffs' property. Robert Roth told the police he would place the property in the dumpster in storage, and the police departed.

Robert Roth then ordered the truck driver to leave with the dumpster. Young unsuccessfully attempted to stop the truck. When the police officers later returned to the scene, they learned that the truck had deposited the plaintiffs' property in the junk yard, where it had been destroyed. The officers refused to make any arrests or write a report, informing Young that the dispute was "a civil matter." After the plaintiffs wrote letters of complaint, the Captain of the 40th Precinct wrote plaintiff Allen a letter in response dated November 6, 2008, in which he "apologize[d] for any inconvenience in the delay of service."

The plaintiffs filed this lawsuit pro se on July 22, 2008, naming the City of New York and Deputy Inspector Ronald Mercandetti as defendants ("City Defendants"), in addition to GRDC and Gordon and Robert Roth. The Roth Defendants answered the complaint on September 18. An Order of January 26, 2009 directed the plaintiffs to serve the City Defendants or else risk dismissal of their claims against those two defendants. When the plaintiffs did not serve the City Defendants, the City Defendants were dismissed from the lawsuit by an Order issued on March 5.

The remaining parties convened for a status conference on March 27. At the conference, the plaintiffs were informed that, because both plaintiffs and defendants were New York residents, the plaintiffs would need to allege a claim arising under federal law if they wished to remain in federal court. As their existing claims appeared to complain of their eviction from the office and the destruction of their property, it was unclear whether their case raised any issues of federal law, and, consequently, whether it could remain in federal court. An Order issued the same day granted the plaintiffs leave to amend the complaint to state a claim arising under federal law.

On April 15, the plaintiffs filed the amended complaint. The amended complaint states that the Roth Defendants violated the following federal laws: the Fourteenth Amendment of the Constitution; 42 U.S.C. § 1982; and Title 8 of the Civil Rights Act of 1968, also known as the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA"). On May 26, the Roth Defendants moved to dismiss or for summary judgment, arguing that the complaint stated no federal claims and that plaintiffs Allen, Cisco, and Turner had waived their claims against GRDC in a general release executed on March 27, 2009 as part of a settlement reached between GRDC and the plaintiffs resolving an ejectment proceeding brought by GRDC against the plaintiffs in Bronx County Civil Court. The motion was fully briefed on July 31.


The Roth Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P., and for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P.*fn1 Under either provision, the rule that pleadings filed by pro se plaintiffs are construed liberally will apply. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). A court is obliged to construe pleadings filed by pro se plaintiffs liberally "particularly when they allege civil rights violations," as is the case here.

Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005) (citation omitted).

"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." Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (citation omitted). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the ...

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