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Karen Marie Adams v. Donald E. Loreman

February 21, 2012




Presently before the Court are four Motions filed by Plaintiff Karen Marie Adams ("Plaintiff" or "Adams") pertaining to the above-captioned matter. First is Plaintiff's Motion, filed on December 6, 2010, seeking a preliminary injunction and appointment of counsel. Dkt. No. 227 ("P.I. Mot.").*fn1 Second, on December 9, 2010, Plaintiff filed a Motion under seal seeking leave to proceed in forma pauperis as well as appointment of counsel. Dkt. No. 232 ("IFP Application").*fn2

Third, Plaintiff filed a Motion to join Vern D. Witherbee ("Witherbee") as a plaintiff on March 28, 2011, pursuant to Federal Rule of Civil Procedure 20(a)(1). Dkt. No. 255 ("Motion for joinder"). Finally, Plaintiff now seeks to withdraw her Motion for joinder without prejudice. Dkt. No. 266 ("Motion for withdrawal"). In addition to opposing the Motion for joinder, Defendants Donald E. Loreman, Sr. and Carolyn Loreman (collectively, "the Loreman Defendants") filed a Cross-Motion for sanctions against Plaintiff under Federal Rule of Civil Procedure 11. Dkt. No. 257 ("Motion for sanctions").


The Court presumes the parties' familiarity with the lengthy factual and procedural background of this case as set forth in the Memorandum-Decision and Order dated September 1, 2010. Adams v. Smith, No. 8:07-cv-452, 2010 WL 3522310 (N.D.N.Y. Sept. 1, 2010) (Kahn, J.) ("September 2010 Order"). Although the September 2010 Order dismissed a number of the claims and Defendants enumerated in Plaintiff's most recent Third Amended Complaint (Dkt. No. 57) ("Complaint"), the Court permitted the case to proceed against the Loreman Defendants; the Village of Keeseville, New York ("Village"); Defendant Mark J. Whitney, the former mayor of the Village; and Defendants William O'Connor and William Seaver, both former Village employees (collectively, "the Village Defendants"). Id. at *21. Specifically, the Court permitted Plaintiff to proceed with her claims against these Defendants that were grounded in: (1) alleged deprivations of, and conspiracy to deprive Plaintiff of, Plaintiff's due process rights (both procedural and substantive) in violation of 42 U.S.C. § 1983; (2) breach of an implied covenant of good faith and fair dealing; and (3) intentional infliction of emotional harm. Id.


A. P.I. Motion

"A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). In this Circuit, a court shall grant a motion for a preliminary injunction only where the party seeking the injunction can show "(1) irreparable harm in the absence of the injunction and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor." NXIVM Corp. v. Ross Institute, 364 F.3d 471, 476 (2d Cir. 2004); Faiveley Transp. Malmo AB v. Wabtec Corp, 559 F.3d 110, 116 (2d Cir. 2009). "Such relief . . . is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Moore v. Consol. Edison Co. of New York, Inc., 409 F.3d 506, 510-511 (2d Cir. 2005) (quotations and citations omitted).

Plaintiff seeks injunctive relief pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq. P.I. Mot. at 1-5. Plaintiff's P.I. Motion, like her Complaint, "sets forth a highly involved factual history . . . and alleges a wide-ranging course of wrong-doing by various Defendants over a period of years." Adams, 2010 WL 3522310, at *1. However, the specific harm that Plaintiff's Motion seeks to prevent appears to be eviction from her former home at 19 Pulitzer Way, Au Sable Forks, New York, pursuant to a jury verdict in town court in Essex County that was affirmed in Essex County Court and again by the Appellate Division. See P.I. Mot. at 3; Dkt. No. 227-3 (Proposed order/judgment); Declaration of William T. Meconi (Dkt. No. 244-2) ("Meconi Decl.") ¶¶ 7-9.*fn3

Plaintiff's Motion is denied. First and foremost, the Court has repeatedly made clear to Plaintiff that she may not continue to assert any claims against parties beyond those claims and parties that are presently before the Court pursuant to the September 2010 Order. As the Court stated in the September 2010 Order denying Plaintiff leave to file a Motion to supplement her pleadings (Dkt. No. 199):

Plaintiff's Motion to supplement or amend will almost certainly cause undue prejudice and delay, and the substance of her filing suffers from futility, as well. The viable claims raised by Plaintiff concern alleged conduct by the Village Defendants and Loremans that has already transpired. There is simply no reason for additional allegations with no clear relationship to those claims and that conduct to be allowed in iteration of Plaintiff's Complaint.

Adams, 2010 WL 3522310, at *21. The Court also refers Plaintiff to the Compliance Order dated January 3, 2011, in which Plaintiff was advised to review the September 2010 Order, as it "clearly establishes the parties to this action and the claims remaining against them" and "prohibits further amendment to Plaintiff's Complaint." Dkt. No. 245 ("Compliance Order"). Plaintiff's claims in her most recent P.I. Motion and her accompanying RICO Case Statement appear primarily concerned with her more recent eviction proceedings in Essex County, and bear no clear relation to the specific complained-of conduct in the Third Amended Complaint that is the subject matter of this litigation. Plaintiff's P.I. Motion contravenes previous Orders of the Court advising her not to file further claims or attempt to add more parties to this case, and dismissal is warranted on that basis alone.

Further, because Plaintiff was evicted from the premises in question on December 28, 2010, her Motion is now moot. Meconi Decl. ¶13; see also Adams v. Standard Fed. Bank, 371 F. App'x 187, 188 (2d Cir. 2010) (citing White River Amusement Pub., Inc. v. Town of Hartford, 481 F.3d 163, 167 (2d Cir. 2007)), aff'g Adams v. Whitney, No. 8:07-cv-452, 2008 WL 189905 (N.D.N.Y. Jan. 18, 2008) (Kahn, J.) (denying Plaintiff's previous Motion (Dkt. No. 38) seeking to prevent her eviction from a different property). The Court therefore lacks jurisdiction to decide the Motion, and it must be dismissed on that basis as well. See Arizonans for Official English v. Ariz., 520 U.S. 43, 66-67 (1997) (question of whether there is a "live" case or controversy relates to the Court's Article III jurisdiction and not to the merits of the case).

Finally, "[i]n order to state a civil RICO claim grounded in fraud, a plaintiff must meet the heightened pleading standard of Federal Rule of Civil Procedure 9(b)." MLSMK Inv. Co. v. JP Morgan Chase & Co., 737 F. Supp. 2d 137, 142 (S.D.N.Y. 2010) (citation and quotation omitted); FED. R. CIV. P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). The Court concluded in the September 2010 Order that Plaintiff's Complaint failed to meet this pleading standard in alleging claims of fraud against the Village Defendants and the Loremans, the only remaining Defendants in this action. Adams, 2010 WL 3522310, at *10, *18. Nothing in the present P.I. Motion or RICO Case Statement warrants a ...

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