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Homeless Patrol v. Family

June 29, 2010

THE HOMELESS PATROL, ET AL., PLAINTIFFS,
v.
JOSEPH VOLPE FAMILY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.

REPORT AND TO THE HONORABLE GEORGE B. DANIELS RECOMMENDATION

Plaintiff Joseph Kastner ("Kastner"), proceeding pro se and in forma pauperis, brings this action against a host of defendants, including the City of New York (the "City"), several insurance companies, and others.*fn1 In his Second Amended Complaint ("Amended Complaint" or "Am. Compl."), Kastner seeks relief on a number of theories, including contractual and tort liability; he also alleges federal statutory violations.

Defendants Allstate Insurance Company ("Allstate"), Hereford Insurance Company ("Hereford"), Continental Casualty Company ("Continental"), Style Management Co., Inc. ("Style"), Mario Lopez ("Lopez"), Ford Motor Company ("Ford"), Mystic Leasing Services Co. ("Mystic"), Andrew Rosenberg ("Rosenberg"), Hedi and Gus Kodoglannis, the City, and William Thompson ("Thompson")*fn2 (collectively, "Moving Defendants") have moved to dismiss the Amended Complaint. (See Docket Nos. 9, 12, 20, 29, 32, 39, 41, 48). For the reasons that follow, I recommend that all of the motions to dismiss be granted, and that the claims against those Moving Defendants be dismissed with prejudice. I further recommend that the Court, sua sponte, dismiss: (a) with prejudice the federal claims against the non-moving defendants for failure to state a claim; and (b) without prejudice the state claims against the non-moving defendants for failure to plead a basis of jurisdiction.

If the Court adopts these recommendations, the result will be a dismissal of all of the claims in the Amended Complaint, (Docket No. 24), subject to a limited opportunity to replead.

I. Statement of Facts

A. Procedural History

This case originally was filed in the District of New Jersey on July 28, 2005. (See The Homeless Patrol v. Joseph Volpe Family, No. 05 Civ. 3762 (JAG) (MCA) (D.N.J.)). After Kastner filed his first amended complaint in January 2007, defendants Lopez, Ford, Hereford, the City, Style, and Rosenberg moved to dismiss the claims against them. (Id., Docket Nos. 10, 21, 23, 24, 31). By order dated January 29, 2009, Judge Joseph A. Greenaway, Jr., granted the City's motion to transfer the case to this Court on the ground that venue in the District of New Jersey was improper and dismissed the defendants' remaining motions as moot. (Id., Docket No. 33). Thereafter, on August 12, 2009, Your Honor held a pretrial conference and granted Kastner leave to file the Amended Complaint. (See Aug. 12, 2009 Tr. (Docket No. 7)). That same day, Your Honor referred the case to me for general pretrial supervision and to report and recommend with respect to all dispositive motions. (See Docket Nos. 6, 25).

I subsequently held a pretrial conference on November 5, 2009, during which I directed all defendants who had not previously filed a motion to dismiss but who wished to do so to file their motions by December 4, 2009, with opposition papers to be served by January 4 and reply papers to be served by January 13, 2010. (Docket No. 37) (Order dated Nov. 5, 2009). I also extended without date Kastner's time to serve any asyet unserved defendants named for the first time in the Amended Complaint. (Id.).

B. Amended Complaint

Kastner's Amended Complaint is 148 pages long and much of it is rambling and difficult to decipher. Even after repeated readings, it is unclear how -- if at all -- the events and allegations in the Amended Complaint relate to one another. Despite these obstacles, the Court is obliged to construe the facts in the light most favorable to Kastner.

Viewed in that manner, the Amended Complaint apparently alleges as follows with respect to the Moving Defendants:

1. City Defendants*fn3

Kastner's principal allegation against the City is that it refuses to hire him because it will not hire any individual with a German surname. (See Am. Compl. at 8, 108, 109, 138).*fn4 According to Kastner, this policy is attributable to the role that Germans played in World War II and the fact that Jewish people are leaders of the City. (Id. at 74, 136). Kastner notes that he shares his name with Rudolf Kastner, who apparently helped a trainload of 1700 Jews escape from Nazi-controlled Hungary in 1944. (Id. at 20).

Although some of the defendants believe that Kastner's father was a Nazi, he actually was drafted into the United States Army and fought against Germany in World War II. (Id. at 80).

Over the course of twenty years, on hundreds of occasions, the City has refused to hire Kastner or his brother even though they passed the applicable entrance examinations, including a bridge painter's examination. (Id. at 25, 91, 138). Kastner alleges in this regard that "[a] Test is a contract and The City of New York has Liability here; and must pay back pay; since they skipped over Joseph Kastner due to a German Last Name." (Id. at 91). He further explains that the City is "the Major Employer in New York City and has not hired German Based Last Named People and as a Result the Neighborhood known as German Town has no / few Germans anymore." (Id.).

According to Kastner, the City's bias against Germans is further evidenced by the fact that the "City Defendants have named in Manhattan only a few streets after German named people and never has any police around the Germany Embassy at 49th and 1st Ave in Manhattan and or has never to [his] knowledge has/had any employment recruitment programs from Germany to NYC." (Id. at 63) (block capitalization omitted). Also, the City "still believes in euthanasia." (Id. at 91; see also id. at 18, 97).

The Amended Complaint also details the alleged wrongs of numerous City agencies. For example, the Taxi and Limousine Commission ("TLC") "[f]ailed to install restrooms for Taxi Driver[s] at Taxi Stands, [and] removed Taxi Stands and located them by Taxi Garages where they do the Taxi Driver no benefit at all." (Id. at 18). The TLC also repeatedly tried to revoke Kastner's Taxi License. (Id.). Moreover, the TLC "forces Taxi Driver[s] to go to dangerous locations in Drug infested areas and permits passengers to complain . . . if they are scared to go to the Boro's in Dangerous Locations." (Id. at 48). Finally, when the credit card machines in the taxis fail and Kastner is forced to work for free, the TLC's decisions lead to "[r]e-enacted slavery." (Id. at 48, 143).

The New York City Police Department ("NYPD") "stops anyone for any or no reason without probable cause, by using an executive order from the Mayor of the City of New York." (Id. at 19; see also id. at 145). Indeed, Kastner has been detained and mistreated repeatedly by the NYPD. The NYPD also has "defame[d] . . . Kastner with 2 counts of Disorderly Conduct, 1 Count of a Class E Felony, 3 Counts of False Arrest, [and] 10 Counts of Detaining and Stopping Plaintiffs[.]" (Am. Compl. 49, 108, 109). The City (presumably the NYPD) also failed to dust Kastner's apartment for fingerprints after it was robbed; instead, it arrested Kastner for insurance fraud. (Id. at 60).

The Department of Transportation ("DOT") "has failed in it[]s fiduciary duties to regulate and manage Traffic." (Id. at 25). It has done so by putting "flower pots" and "refu[s]e islands" in the middle of thoroughfares, which, in turn, has caused additional traffic accidents. (Id. at 25-26). Kastner seeks a mandatory injunction requiring the DOT to return the City streets to their prior condition. (Id. at 26).

The City and its agencies also have thwarted Kastner's efforts to aid the homeless. Thus, the "New York City [Department of] Parks and Recreation impound[ed] and destroy[ed] 3 Homeless Donation Boxes used by the Homeless Patrol for Clothing and Canned Food." That agency also told Kastner he needed "a permit but failed to provide [him] with a donation box permit application and or any other mean to make donation boxes appear in New York City to help feed and cloth[e] the Homeless." (Id. at 27). The City further has prevented him from registering the Homeless Patrol as a Section 501(c)(3) nonprofit organization by requiring him to have six board members. (Id. at 18, 141). Additionally, the City and the Department of Homeless Services mistreat the homeless by arresting them when they sleep on the streets and by providing them with no food or money. (Id. at 60, 100). The City gets money from New York State, however, and then "indirectly rips off our federal government for millions and billions of dollars and lines the pockets of [the City]." (Id. at 60, 142).

"The Department of Environmental Protection does not protect at all." (Id. at 27). Rather, it is "poisoning [the City's] food [and water] supply" and failing to protect residents from toxic dumping. (Id.). In addition, the City (and Thompson) dump raw sewage into the East River and the Atlantic Ocean. (Id. at 50, 109). The Department of Sanitation similarly "[h]as let Garbage Stockpile all over the City to sometimes 2nd Story Levels." That agency also refuses to purchase narrower garbage trucks, resulting in Kastner, as a taxi driver, being forced to wait in traffic behind trucks. (Id. at 27).

Finally, Thompson has hoarded all of the money intended to aid the homeless. (Id. at 18). He also has wasted millions building the Highline Park in a time of economic recession. (Id. at 60).

In his Amended Complaint, Kastner seeks to recover a total of $550 million from the City. (Id. at 104).

2. Allstate

Allstate issued Kastner a renter's insurance policy, but refused to pay him $8,000 after his apartment was burglarized; instead, Allstate called the NYPD and caused Kastner to be charged with insurance fraud. (See id. at 8-11, 19, 45, 60-61, 91-92, 98, 110). More specifically, Allstate "Arrest[ed] [Kastner] Falsely and brand[ed] him with a Class E Felony which result[ed] in . . . a life long luster of dead end Slave Jobs." (Id. at 8). The burglary and the arrest both apparently occurred in or around 1986. (See id. at 110) ("[T]he apartment robbery occurred on or about 1986."). Kastner seeks to recover $500 million in damages from Allstate as compensation for these incidents. (Id. at 106).

3. Hereford

Hereford denied Kastner's workers' compensation claim after he was the victim of an on-the-job assault in 2001. As he explains:

After . . . Kastner was robbed and was seriously injure[]ed on Halloween 2001 in a taxicab N.Y. 4FI7, had a N.Y. State worker's compensation case, at the behest of Hereford . . . through the joint / separate effort's of Mr. Marcus Francis of Hereford Insurance Co. and Babara Trottier of Continental . . . based their whole case of workers compensation insurance company fraud against . . . Kastner . . . . In December of 2003 Mr. Marcus Francis consulted with the New York State insurance fraud office of Mr. Mark Howard and attempted without success to arrest . . . Kastner . . . . As a result Hereford Insurance has bre[a]ched a contractual Agreement with: "Mario Lopez the owner of the taxicab that Joseph Kastner was driving when he got robbed on Oct 31, 2001;" Hereford than tried to have . . . Kastner arrested through conspiracy with Mario Lopez, Hedi and Gus of Mystic Leasing Mario Lopez's representatives. [Kastner] tried to settle with Hereford for $35,000 of sick and recovery pay for 6 months of lying at home: recovering with no avail[.]

Hereford[ ] would rather fight in federal court! (Id. at 62) (block capitalization omitted). Hereford also "tried to indict and Arrest [Kastner] in New York State Workers Compensation Court and failed." (Id. at 11). During these proceedings, Hereford engaged in witness tampering by threatening doctors who were to testify on Kastner's behalf in his workers' compensation case. (Id. at 11). Additionally, Hereford conspired with other defendants to have Kastner permanently jailed in relation to an insurance fraud and to help other defendants avoid paying higher insurance rates. (Id. at 14, 47-48). Finally, Hereford refused to pay Kastner when he suffered injuries attributable to the defective seats and defective air intake valve in the Ford taxis he drove. (Id. at 32-33). As a consequence, Kastner seeks to recover a total of $300 million from Hereford. (Id. at 104).

4. Continental

Kastner purchased a life and accident insurance policy from Continental, which provided coverage for him and his wife from 2000 to 2003. (Id. at 8).*fn5 Thereafter, Continental breached its insurance contract with Kastner by not paying him $250,000 that he was owed under the policy after he was injured during the robbery in his taxicab in 2001. (Id. at 9). Through its mailings and false advertisements, however, Continental had promised to pay Kastner or his wife "in the event of an accident and or accidental armed robbery." (Id. at 10). Continental also sold Kastner's policy to Hartford, but failed to notify him of the change. (Id. at 62). Like Hereford, Continental further attempted to "indict and Arrest [Kastner] in New York State Workers Compensation Court," but failed. (Id. at 10). Finally, like Hereford, Continental wrongfully refused to pay Kastner for the injuries he received as a consequence of driving Ford taxis with defective seats and defective air intake valves. (Id. at 32-33).

5. Style and Andrew Rosenberg

Style is Kastner's former employer. (Id. at 12). According to the New York State Department of State, Rosenberg is Style's Chairman or CEO. (See NYS Department of State Corporation and Business Entity Database, http://appext9.dos.state. ny.us/corp_public/corpsearch.entity_search_entry (last visited June 21, 2010)). Rosenberg is listed on the Court's docket sheet as a defendant but is not named in the caption of the Amended Complaint. It therefore is unclear whether Kastner intended to sue Rosenberg individually. In any event, because the Amended Complaint often does not distinguish between Rosenberg and Style, I have assumed, for purposes of this Report and Recommendation, that Rosenberg is a defendant.

According to Kastner, "Style Management intentionally leased [him] Fraudulent Taxicabs with Forged Rate Cards and must return over $250,000 in lease payments In over 4 1/2 years of Taxi Rentals and Leases." (Id. at 12). Style also owes Kastner $600 in up-front weekly payments and a $100 deposit. (Id. at 65).

In addition, Style provided a "decrepit, deplorable work environment" both in its taxi garage and in its taxis. (Id. at 12). Indeed, Style tampered with the pollution controls on its taxis and created a hazardous working environment within the cabs. (Id. at 64).

Rosenberg hated Kastner due to his German last name: For over four [and] a half long years [Kastner] watched . . . Rosenberg Operate. He calls the racial epitaphs' over the Public Address System, constantly degrades Plaintiff Joseph Kastner, Sends Joseph Kastner home over 45 times with no Compensation, Hates Joseph Kastner because he is German American; hates and has charged Joseph Kastner a one time $100.00 late fee for Taxi Inspection; Charges Joseph Kastner over $40.00 per shift to get out early. Sent Joseph Kastner to do hundreds of errands without pay; failed to provide rest rooms for Joseph Kastner; had rats, roaches and vermin living in the air conditioning I heating system in the Taxi's and or inside the Taxi's; and in his garages; never provided one chair for Joseph Kastner to sit in. Made Joseph Kastner wait sometimes 1 to 5 hours for a Taxicab; Failed to get Stand By Vehicles' so that if a Taxicab breaks down the Taxi driver can work in another Taxicab. (Id. at 12).

As a result of Rosenberg's hatred for him, Kastner was treated worse than the other Style employees. Specifically, Style gave new taxi cabs to everyone but Kastner, who received taxis unfit for the roadways because he had a German last name. (Id. at 45, 65). Rosenberg also called the NYPD, reported that Kastner never had worked at Style, and tried to have Kastner arrested for trespass. (Id. at 12, 65). Style further refused to file a second workers' compensation claim for Kastner and then sought to have his taxi license taken away without due process. (Id. at 13).

Additionally, Style refused to pay Kastner for injuries received as a result of driving its defective cabs or failure to repair the cabs with available after-market solutions. (Id. at 31-32). Style and Rosenberg also dumped toxic chemicals into the City's water supply. (Id. at 27, 50).

Kastner seeks to recover $300 million from Style (and presumably Rosenberg). (Id. at 104).

6. Lopez, Mystic, and Hedi and Gus Kodoglannis Lopez owned the medallion for the taxi that Kastner was driving when he was beaten and robbed in 2001. (Id. at 62). At that time, Kastner apparently worked for Mystic, which is partially owned by Hedi Kodoglannis. (Id. at 131; Style Mem. at 2). Together with the other defendants, Mystic, Lopez, and Hedi and Gus Kodoglannis attempted to have Kastner arrested for insurance fraud at a workers' compensation hearing. (Am. Compl. at 14, 46). They also brought an action against Kastner's wife in small claims court. (Id. at 46).

Mystic and Lopez were involved in the other conspiracies to deny Kastner compensation for his various injuries and claims. (Id. at 31-33). Additionally, as Kastner somewhat cryptically explains, Lopez "has a liability to help [him but] has chosen not to help and now . . . is being sued for inaction; which in itself is an action and other charges following inactions." (Id. at 39).

Hedi Kodoglannis worked for Mystic and saw Kastner immediately after he was robbed. (Id. at 46). She was angry because she had to pay $175 for a tow truck. (Id.).

7. Ford

Ford "makes Ford Taxicabs Defective on Purpose to save money; which forces the Consumer and or Taxi Driver to crawl to their dealership and repair the Taxicab, Lincoln Town Car Limousines and or Cars . . . . This generates revenue for parts and service and or New Taxi Sales." (Id. at 13; see also id. at 46, 72). Kastner has been injured by Ford's defective designs, which have caused him to have "Asthma, Breathing Disorder[s], [and] Lower and Upper Back Disk Problems." (Id. at 13). Ford also failed to install in its vehicle alarm or security systems which would have prevented Kastner's robbery and subsequent injury in a Ford vehicle in 2001. (Id.). Ford further has failed to pay Kastner for the injuries caused by the defective seats and air intake systems in its taxicabs. (Id. at 31-32).*fn6

C. Defendants' Motions

Seven defendants (or groups of defendants) have moved to dismiss the Amended Complaint. Several of these motions were filed before the service of that pleading, but the parties were instructed at the initial conference before me that any motions addressed to earlier pleadings would be ...


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