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Jones v. Cawley

October 21, 2010

ROBERT DILLARD JONES DOING BUSINESS AS FAMILY CHARTER & REALTY CORPORATION, PLAINTIFFS,
v.
JOSEPH F. CAWLEY, BROOME COUNTY JUSTICE, MARY ANN LEHMAN, BINGHAMTON CITY COURT JUSTICE, ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL, DAVID E. HARDER, BROOME COUNTY OFFICE OF THE SHERIFF, FREDERICK WILLIAMS, STEPHEN B. ATKINSON, DONNA M. ALTSCHUH, RUSSELL PHELPS, PHELPS CORPORATION, BROOME COUNTY DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Robert D. Jones, individually and on behalf of Family Charter & Realty Corporation, commenced a pro se action under 42 U.S.C. §1983 against various defendants seeking damages, a temporary restraining order, and a preliminary injunction pursuant to Fed. R. of Civ. P. 65(a) enjoining the Defendants from proceeding with a tax foreclosure of Plaintiffs' real property. Defendants now move to dismiss the action pursuant to Fed. R. Civ. P. 12.

I. FACTS

Plaintiff Jones is President of the Family Charter Realty Corporation (hereinafter Corporation). Jones' claims are best understood to rise from two separate, but connected situations. First, Jones sued Defendants Altschuh and Williams in the City of Binghamton Small Claims Court for an unpaid gas bill in connection with certain real property. Second, Jones failed to pay property taxes on the real property and the County of Broome commenced a tax foreclosure proceeding against the property. Jones connects these two situations by asserting that, because he was not allowed to collect monies from Altschuh and Williams, he was unable to pay property taxes he owed to the County of Broome.

A. Jones Small Claims Court Lawsuit

On July 24, 2008, Defendant Lehman, a Binghamton City Court Judge, presided over the small claims court matter concerning the gas bill. Altschuh and Williams were represented by legal counsel, Defendant Atkinson. Jones claimed he entered into an oral contract with Altschuh and Williams for them to pay the gas bill. Atkinson moved to dismiss the action on the ground that Jones did not have standing to sue, that only the Corporation had standing to sue, and that the Corporation could not sue because it was deemed inactive and dissolved for failure to pay franchise taxes. Jones did not present any proof to refute the inactive status of the Corporation. Judge Lehman granted the motion to dismiss. On Appeal, Defendant Broome County Court Judge Cawley affirmed Lehman's decision.

On January 23, 2010, Jones, individually and as President of the Corporation, wrote to the Broome County Sheriff's Office alleging that Altschuh, Williams, and Atkinson committed fraud, larceny, unlawful imprisonment, and other crimes in connection with the small claims court action. Defendant Broome County Sheriff Harder wrote to Jones on February 8, 2010 explaining that the Sheriff's Office received his letter but could not pursue Jones' accusations. The letter suggested that Jones contact the New York State Attorney General's Office, which he did. On March 4, 2010, the New York State Attorney General's Office acknowledged receipt of Jones letter and informed him that they could not assist him. The Attorney General's Office suggested Jones work with his attorney to resolve the matter.

B. Foreclosure of 322 Main Street

Prior to Jones' lawsuit in small claims court against Altschuh and Williams over the unpaid gas bill, he started to accrue unpaid taxes on a building at 322 Main Street, Binghamton, New York. The deed for 322 Main Street shows the owner as Family Charter and Realty Corporation. Broome County commenced a foreclosure proceeding against the real property for unpaid taxes. The Corporation had until June 23, 2010 to pay the back taxes owed to the County.

On June 22, 2010, the mortgagee of 322 Main Street, Phelps Corporation, paid the delinquent taxes in full. Defendant Phelps is the President of the Phelps Corporation. Broome County filed a certificate of redemption and 322 Main Street is no longer in a tax foreclosure proceeding.

II. PROCEDURAL BACKGROUND

On June 17, 2010, Jones filed a Complaint and an Emergency Motion for Preliminary Injunction and Temporary Restraining Order. Jones' Complaint seeks a preliminary injunction and a temporary restraining order pursuant to Fed. R. Civ. P. 65. Jones specifically alleges that Defendants: (1) Cowley and Lehman abused their judicial discretion in not giving him a favorable judgment; (2) Atkinson violated rules of evidence in the small claims court lawsuit; (3) Williams and Altschuh committed fraud, perjury, and slander against Jones in the City and County Court proceedings; (4) Williams and Altschuh committed usury; (5) Phelps committed usury in connection with the mortgage on the real property; (6) the County of Broome denied him certain unspecified tax exceptions; (7) Williams, Altschuh, Phelps, and the County of Broome owe restitution damages; and (8) Harder and Cuomo were negligent in their administrative and official capacity by not commencing investigations in response to Jones' letters.

Defendants filed motions to dismiss asserting, among other things, failure to state a claim for which relief may be granted under Fed. R. Civ. P. 12(b)(6). Jones then moved to file an amended complaint. Jones' Amended Complaint specifies particular Constitutional provisions he claims were violated, seeks to clarify his assertions that Defendants violated his civil rights under 42 U.S.C. §1983, and specifies his allegation that Defendants violated the Fair Housing Act and engaged in unfair and deceptive acts. Otherwise, the Amended Complaint is substantially the same as the original Complaint. Defendants oppose Jones' motion to amend his complaint.

Jones has also filed a motion for permissive joinder of parties under Fed. R. Civ. P. 20(2)(A)(B), and misjoinder of parties under Fed. R. Civ. P. 21. In those motions, Jones seeks to substitute Defendants Cawley and Lehman for the City of Binghamton.

III. STANDARD OF REVIEW

Motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) test the legal, not the factual, sufficiency of a complaint. Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). "The issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). Accordingly, the Court must accept Jones factual allegations in the complaint as true, and "draw all reasonable inferences in favor of the plaintiff." Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The United States Supreme Court recently noted that, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "To survive a motion to dismiss, the complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable ...


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