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Theodore F. Johnson v. Natalia Wolan A/K/A Natalia Swan

December 14, 2010


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


Plaintiff pro se Theodore F. Johnson filed this action on March 1, 2010, asserting claims for fraud, trespass, and federal constitutional violations arising out of his former ownership of a building at 121 West 118th Street in Manhattan ("the Property"). Now before the Court is defendant Natalia Swan's ("Swan")*fn1 motion to dismiss pursuant to Federal Rules of Civil Procedure 8(a), 9(b), 12(b)(6), and the doctrines of res judicata and issue preclusion, and her motion for sanctions pursuant to Fed. R. Civ. P. 11.*fn2 For the reasons that follow, Swan's motion to dismiss is GRANTED, Swan's motion for sanctions is DENIED, and the Court sua sponte dismisses the claims against the remaining defendants.


I.Johnson's Litigation History Prior to the Sale of the Property to Swan

Johnson has an eleven-year history of federal litigation related to the Property. On May 12, 1999, Johnson filed a federal civil rights action in this District in connection with his ownership of the Property against the Department of Housing Preservation and Development of the City of New York ("HPD"); the New York City Buildings Department; Joseph Lynch, the Commissioner of the New York State Division of Housing and Community Renewal; Rohan James, the Rent Administrator of the New York State Division of Housing and Community Renewal; and Yvette Brickhouse, one of the tenants of the Property. Johnson v. Dep't of Housing Preservation & Development, No. 99 Civ. 3472 (SHS) (S.D.N.Y. dismissed Sep. 27, 2000) ("Johnson I"). The court dismissed the complaint on September 27, 2000. Johnson I, ECF No. 31. Johnson then requested a default judgment to be entered against HPD on May 23, 2001. Johnson I, ECF No. 35. That request was denied, and Johnson thereafter unsuccessfully appealed to the Second Circuit. Johnson v. Dep't of Housing Preservation & Development, 25 F. App'x 81 (2d Cir. 2002).

The day his appeal was filed in Johnson I, June 13, 2001, Johnson commenced another action against HPD, Brickhouse, and the Housing Preservation and Development Emergency Repair Unit, again alleging violations of his constitutional rights arising from his ownership of the Property. Johnson v. City of New York, Dep't of Finance, No. 01 Civ. 5304 (VM) (S.D.N.Y. dismissed Nov. 29, 2001) ("Johnson II"). Noting that Johnson II relied on "the same nucleus of core facts" as Johnson I, Judge Marrero dismissed Johnson's complaint on November 29, 2001. Johnson then appealed to the Second Circuit on December 28, 2001, which dismissed Johnson's appeal on April 14, 2003. Johnson II, ECF No. 14.

Before Judge Marrero dismissed his complaint, though, Johnson filed another federal civil rights action in this district on October 24, 2001 against Brickhouse; LeShawn Smith, another tenant on the Property; HPD; and two John Doe New York police officers. Johnson v. Brickhouse, No. 01 Civ. 9386 (LMM), 2003 WL 355236 (S.D.N.Y. Feb. 18, 2003) ("Johnson III"). Judge McKenna dismissed all claims against Brickhouse on February 18, 2003. Id. at *5. As in Johnson I, Johnson filed motions for default judgments against the Johnson III defendants, all of which were denied. Johnson III, 2003 WL 355236, at *4 ("Given that plaintiff has not shown that any of the defendants other than Brickhouse have been properly served or that any of them have in fact defaulted, they are excused."). In May 2004, Johnson voluntarily withdrew Johnson III without prejudice. Johnson III, ECF No. 30.

Johnson's absence from this District was short-lived. In December 2004, Johnson filed another federal civil rights action against HPD, two of HPD's attorneys, and Brickhouse. Johnson v. Department of Housing Preservation and Development, 04 Civ. 8580 (WHP) (S.D.N.Y. dismissed Nov. 23, 2005) ("Johnson IV"). Judge Pauley dismissed all of Johnson's claims as being time-barred, barred by res judicata, or "impossible for this Court to analyze" and appropriate for dismissal under Rule 8(a)(2). Johnson IV, ECF No. 18. Johnson appealed Judge Pauley's decision on December 1, 2005, and the Second Circuit affirmed the decision in June 2007. Johnson v. Dep't of Housing Preservation and Development, 218 F. App'x 5, 7 (2d Cir. 2007).

II.Sale of the Property to Swan

Plaintiff executed a contract selling the Property to Swan in July 2002, but refused to close on the sale because he wanted first to resolve his challenges to judgments arising from taX assessments made on the property. (See Boop Decl. Ex. A at 1-2.)*fn3 Swan brought a suit in New York Supreme Court to compel specific performance on the contract selling the property. (Id.) In a decision and order dated January 4, 2006, Justice Debra A. James granted Swan's motion for summary judgment and directed Johnson to specifically perform the contract of sale of the Property. (Id. at 5.)

Johnson resisted the order with a motion to reargue and a purported counterclaim, which Justice James found "wholly meritless." (Boop Decl. Ex. B at 2.) Justice James then ordered a receiver to take possession of the property and convey it to Swan for the formerly agreed-on price. (See id. at 3-4.)

Johnson then returned to this District on January 3, 2008. Johnson v. James, 08 Civ. 32 (PAC), 2009 WL 777861 (S.D.N.Y. Mar. 25, 2009) ("Johnson V"). In that action, Johnson sued Justice James; Swan; Alterman and Boop, LLP, Swan's lawyers; William Schaap, another one of Swan's lawyers; Robert S. Sikorski, the receiver for the Property; Fidelity National Title Insurance Company, Swan's title insurer; Yolanda Chang, the broker on the property sale; Gwenerva Cherry, a lawyer who had represented Johnson; HPD; and the New York City Department of Finance ("DOF"). Id. at *1. By Memorandum Opinion and Order dated March 25, 2009, Judge Crotty dismissed Johnson's claims. Id. The claims against HPD and DOF were dismissed on res judicata grounds, and although "[t]he Court underst[ood] by reading the Complaint that Mr. Johnson believes that there was fraud in the court-ordered sale of his property to Ms. Swan," Johnson's complaint contained such vague and conclusory allegations that it could not satisfy "even the liberal pleading standard under Rule 8(a)." Id. at *4. Johnson appealed to the Second Circuit, which affirmed Judge Crotty's opinion in a summary order dated February 8, 2010. Johnson v. James, 364 F. App'x 704, 706 (2d Cir. 2010).

III.This Litigation

On March 1, 2010, Johnson commenced this action, his sixth suit in federal court regarding the Property and his third attempt at voiding the conveyance of the Property to Swan. Plaintiff is an 83-year-old World War II veteran and the former owner of the Property. (See Compl. ¶ 4, 5, 8.) The Complaint appears to request a judgment declaring that various documents relating to the Property's ownership are fraudulent, including the deed to the property recorded with the New York City Department of Finance indicating Swan's ownership, various insurance documents naming Swan as fee-simple owner of the Property, and a real property transfer report filed with the State of New York's Board of Real Property Services indicating the transfer from the state-court receiver to Swan. (See Compl. ¶¶ 12-16, Exs. A, B, D.) There are no further facts in the Complaint that attempt to explain why these documents are fraudulent. The Complaint also asserts that Johnson "is suing the defendant NATALIA WOLAN a/k/a NATALIA SWAN, individually and as NATALIA WOLAN, for the sum of Two Million Five Hundred and 00/100 ($2,500,000.00) Dollars for fraudulent ...

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