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Jager v. Mitschele

November 12, 2010

ROBERT JAGER, PLAINTIFF,
v.
HERBERT MITSCHELE, JR., MARY PALUMBO, ALBERT RYAK, DEFENDANTS.



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

MEMORANDUM AND ORDER

Pending before the Court is Defendant Albert Ryak's motion to dismiss. For the following reasons, Mr. Ryak's motion is DENIED. That being said, the Court sua sponte orders Plaintiff Robert Jager, pro se, to SHOW CAUSE why this action should not be dismissed against the other Defendants, Herbert Mitschele, Jr. and Mary Palumbo, for lack of prosecution.

BACKGROUND

On April 26, 2006, Mr. Jager commenced this pro se suit against Mr. Mitschele, alleging that Mr. Mitschele committed fraud, perjury, and obstruction of justice in connection with another lawsuit. On June 1, 2006, the Court sua sponte dismissed Mr. Jager's Complaint, for lack of subject matter jurisdiction and for not pleading any cognizable claims. The Court, however, granted Mr. Jager leave to amend.

On July 26, 2006, Mr. Jager filed an Amended Complaint, this time naming Mr. Mitschele and Ms. Palumbo as Defendants. But Mr. Jager apparently never served this Amended Complaint on either Defendant, and the Court sent him notices of impending dismissal on both January 3, 2007 and September 18, 2009. On October 6, 2009, Mr. Jager filed a Second Amended Complaint, this time naming Mr. Mitschele, Ms. Palumbo, and Mr. Ryak as Defendants. Mr. Jager alleges that Mr. Mitschele and Ms. Palumbo committed fraud in another lawsuit, and that Mr. Ryak committed legal malpractice in representing him in that lawsuit.

Mr. Jager did not promptly serve the Second Amended Complaint. On March 18, 2010, the Court again sent him a notice of impending dismissal for lack of prosecution. On March 31, 2010, Mr. Jager responded to the Court's notice by requesting that the Court not dismiss this suit, and enclosing three Affidavits of Service. The Affidavits of Service do not, however, indicate how Mr. Jager believes he affected service, or contain any information confirming that each Defendant, in fact, received a copy of the Second Amended Complaint. And it is unclear, at best, if Mr. Jager actually affected proper service on anyone. Mr. Jager did, however, receive Mr. Ryak's agreement to waive service on April 29, 2010. See Ryak Aff. Ex. A.

On May 27, 2010, Mr. Ryak filed this motion to dismiss. Mr. Mitschele and Ms. Palumbo have not responded to the Second Amended Complaint and, as noted above, it is unclear if they were ever properly served.

DISCUSSION

I. Standard of Review on a Motion to Dismiss

In deciding FED. R. CIV. P. 12(b)(6) motions to dismiss, the Court applies a "plausibility standard," which is guided by "[t]wo working principles," Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). First, although the Court accepts all factual allegations as true, and draws all reasonable inferences in the plaintiff's favor, this "tenet" is "inapplicable to legal conclusions"; thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris, 572 F.3d at 72 (quoting Ashcroft); Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Management LLC, 595 F.3d 86, 91 (2d Cir. 2010). Second, only complaints that state a "plausible claim for relief" can survive Rule 12(b)(6). Id. Determining whether a complaint does so is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

Pro se plaintiffs enjoy a somewhat more liberal pleading standard. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed. 2d 1081 (2007) ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotations and citations omitted). However, pro se plaintiffs must still "comport with the procedural and substantive rules of law," Javino v. Town of Brookhaven, 06-CV-1245, 2008 U.S. Dist. LEXIS 17323, at *3 (E.D.N.Y. Mar. 4, 2008).

II. The Statute of Limitations

Mr. Ryak's motion to dismiss makes only a single argument: the claim against him is time-barred. In this regard, Mr. Ryak contends that New York's three-year malpractice statute of limitations bars Mr. Jager's claim, because Mr. Jager's claim accrued no later than October 2003, while Mr. Jager waited until October 2009 to sue him. In response, Mr. Jager argues that:

(1) New Jersey's six-year statute of limitations applies; and (2) his claim accrued in 2007. Thus, to resolve Mr. Ryak's motion, the Court must determine what state's statute of limitations applies, and when Mr. ...


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