United States District Court, N.D. New York
April 30, 2014
NADINE TOWNSEND, Plaintiff,
PUBLIC STORAGE INC., Defendant.
NADINE TOWNSEND, Plaintiff pro se, Albany, New York.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, Magistrate Judge.
The Clerk has sent this pro se Complaint together with an application to proceed in forma pauperis and motion for appointment of counsel to the Court for review. (Dkt. Nos. 1-3.) Plaintiff Nadine Townsend has commenced this action against Defendant Public Storage Inc., alleging jurisdiction under 42 U.S.C. § 1981, et seq.; 28 U.S.C. § 1343; 15 U.S.C. § 2001, et. seq.; and 18 U.S.C. §§ 1501 and 1961. For the reasons that follow, I grant Plaintiff's application to proceed in forma pauperis (Dkt. No. 2), deny her motion for appointment of counsel, and recommend the sua sponte dismissal of her Complaint with prejudice. (Dkt. No. 1.)
I. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS
A court may grant in forma pauperis status if a party "is unable to pay " the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application, I find that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is granted.
II. ALLEGATIONS OF THE COMPLAINT
Plaintiff alleges that on or about January 29, 1999, she entered into an agreement with Defendant to store her van at Defendant's storage facility in Dallas, Texas for a period of one year. (Dkt. No. 1 at ¶ 3.) At the time, Plaintiff was planning on moving to California with her mother. Id. at ¶ 4. Plaintiff informed Defendant that she and her nearly seventy year old mother were both disabled, and that being forced to come back to Dallas to move the van would be difficult and would create financial hardship and perhaps further injury, pain, and suffering. Id. Plaintiff was assured that the van would be fine in space P017 for as long as she needed the space. Id. at ¶ 5. Plaintiff moved the van into the space on or about January 29, 1999. Id. at ¶ 6.
When or about May 29, 1999, Plaintiff received a phone call from Defendant informing her that she would have to move the van immediately, she was completely devastated because moving it would be a costly endeavor. Id. When Plaintiff reminded Defendant of the parties' agreement, she was told that the van had to be moved because she was late with her payments. Id. at ¶ 7. When Plaintiff checked her receipts, she discovered she was not late in making payments. Id.
Plaintiff called a representative of Defendant at the Dallas facility on or about June 8, 1999 and pressed her for answers as to why they were being forced to move the van and were told that government officials were there pressing them to get Plaintiff's van out. Id. at ¶ 9. Plaintiff was told that the space where the van was being stored was not for vehicles, and when Plaintiff asked that it be moved, she was told there were no more spaces available. Id. at ¶ 9. Plaintiff contacted business associates and friends in Dallas to check to see if spaces were available and was told that there were spaces. Id. at ¶ 10. She then called Defendant's headquarters and let them know that Defendant was violating the agreement it had with her to store the vehicle. Id. at ¶ 11. She told headquarters that having to move the van would create an unnecessary hardship for two disabled women. Plaintiff told the woman at headquarters with whom she spoke that Defendant's actions were "a violation of [their] rights and in violation of free trade an act of deprivation and obstruction." Id. at ¶ 12.
On or about June 16, 1999, Defendant contacted Plaintiff for the final time and offered to transfer the van to a place where it could be kept. Id. at ¶ 14. Plaintiff claims that it was the first time Defendants put anything in writing and has alleged that the letter from Defendant essentially said for about the sixth time, pay us and get out. Id. at ¶ 15.
III. LEGAL STANDARD FOR INITIAL REVIEW OF COMPLAINT
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that... the action... (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) ( per curiam ) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, ... it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
28 U.S.C. § 1391 governs the venue of all civil actions brought in the United States district courts. 28 U.S.C. § 1391(a)(1). Section 1391(b) provides that
a civil action may be brought in - (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
See Atlantic Marine Const. Co., Inc. v. U.S. Dist. Court for the Western District of Texas, ___ U.S. ___, 134 S.Ct. 568, 577 (2013).
According to the Complaint, Defendant's corporate address is in the State of California and the storage area from which she was told to remove her van was in Dallas, Texas. (Dkt. No. 1 at 2.) The sole connection between New York and Plaintiff's claim is that she is presently a resident of Albany, New York. Plaintiff attempts to tie her conspiracy claim to New York by alleging that the City of Troy, New York issued her up to ten parking tickets during the weeks her mother was dying. Id. at 4. That allegation, however, bears no relationship whatsoever to her claim against Defendant regarding the storage of her van in Dallas, Texas in 1999 or her conclusory claims of conspiracy. See also Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012), cert. denied, 133 S.Ct. 846 (2013) (conclusory allegations of participation in a conspiracy have long been insufficient to state a claim).
Although Plaintiff now resides in New York, the venue statute does not refer to where a plaintiff resides. The statute refers to the district where the defendants reside if they all reside in the same state in which the district is located, or to a district where a substantial part of the acts or omissions that form the basis for the complaint occurred. 28 U.S.C. § 1391(b)(1), (b)(2). The dispute over the storage of Plaintiff's van occurred in Texas and spilled over into California to some extent when Plaintiff, then apparently residing in California, contacted Defendant's home office to complain. Id. at ¶¶ 3-4, 11-12. Plaintiff's current residence is not relevant for purposes of the venue statute. See Rose v. Myers, No. 3:13-CV-419 (MPS), 2013 WL 6073627, at *1, 2013 U.S. Dist. LEXIS 163385, at *4 (D. Conn. Nov. 18, 2013) (venue improper in Connecticut when plaintiff was a Connecticut resident, but none of the defendants resided in Connecticut, and the facts which formed the basis of plaintiff's complaint occurred in New Jersey). Thus, none of the bases for asserting venue in New York is present in the Complaint.
When a case is filed in a district in which venue is improper, the court shall dismiss the case, or "if it be in the interests of justice, transfer the case to any district... in which it could have been brought." 28 U.S.C. § 1406(a). Whether to dismiss or transfer is discretionary. Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). The Second Circuit has cautioned, however, that a court should not dismiss for improper venue on its own motion "except in extraordinary circumstances." Stich v. Rehnquist, 982 F.2d 88, 89 (2d Cir. 1992). Extraordinary circumstances may exist when the plaintiff is a vexatious litigant. Id. This court finds, as discussed below, that this Plaintiff's case presents sufficient extraordinary circumstances, justifying sua sponte dismissal, rather than a transfer to California, because the Plaintiff is a vexatious litigant, and her Complaint is frivolous.
V. JURISDICTION AND CLAIM ANALYSIS
In her Complaint, Plaintiff has cited various statutes as bases for jurisdiction: 42 U.S.C. § 1981; 28 U.S.C. § 1343; 15 U.S.C. §§ 2301, et seq.; 18 U.S.C. §§ 1501 et seq.; and 18 U.S.C. § 1961 et seq. (Dkt. No. 1 at 2.)
A. 18 U.S.C. § 1501 "et seq."
Section 1501 provides criminal penalties for an individual who commits an assault on a process server. 18 U.S.C. § 1501. Section 1501 is part of the "Obstruction of Justice" section of Title 18. See United States v. Masterpol, 940 F.2d 760, 762 (2d Cir. 1991) (citing 18 U.S.C. §§ 1501-17). There is no mention of a process server in Plaintiff's Complaint, nor do the allegations in the Complaint provide a basis for finding jurisdiction under any of the other "obstruction of justice" provisions in Title 18. See obstruction of an "extradition agent" (18 U.S.C. § 1502); influencing or injuring an officer or a juror (18 U.S.C. §§ 1503, 1504); obstruction of proceedings before departments, agencies, and committees (18 U.S.C. § 1505); theft or alteration of a record or process or acknowledging bail in the name of another person (18 U.S.C. § 1506); picketing or parading with the intent of obstructing justice (18 U.S.C. § 1507); recording, listening to, or observing proceedings of grand or petit juries while they are deliberating (18 U.S.C. § 1508); obstruction of court orders (18 U.S.C. § 1509); obstruction of criminal investigations, or obstruction of state or local law enforcement (18 U.S.C. §§ 1510, 1511); tampering with, or retaliating against, witnesses, victims, or informants (18 U.S.C. §§ 1512, 1513); civil actions to restrain harassment of a victim or witness (18 U.S.C. § 1514); civil action to protect against retaliation in fraud cases (18 U.S.C. § 1514A); obstruction of a federal audit (18 U.S.C. § 1516); obstructing examination of financial institutions (18 U.S.C. § 1517); and obstructing criminal investigations of health care offenses (18 U.S.C. § 1518).
None of these sections applies to Plaintiff's claim that Defendant breached an agreement to allow her to store her van at its facility in Dallas, Texas. More importantly, Plaintiff cannot bring a civil action to enforce criminal statutes, even when the action is commenced in the proper venue. See Leeke v. Timmerman, 454 U.S. 83, 85 (1981) (a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 511 (2d Cir. 1994) (criminal statutes do not provide private causes of action); Brown v. State Farm Fire and Cas. Co., No. 3:11-CV-1435 (JBA), 2013 WL 951726, at *3 n.2, 2013 U.S. Dist. LEXIS 33647, at *11 n.2 (D. Conn. Mar. 12, 2013) (obstruction of justice and 18 U.S.C. §§ 1501-07 are criminal statutes that do not give rise to private causes of action) (citations omitted); Garay v. United States Bancorp, 303 F.Supp.2d 299, 303 (E.D.N.Y. 2004) (obstruction of justice is a criminal matter for which there is no private cause of action) (citations omitted); United States ex rel. Farmer v. Kaufman, 750 F.Supp. 106, 108-109 (S.D.N.Y. 1990) (plaintiff had no standing to bring a civil suit under criminal statutes prohibiting obstruction of justice - nor will court imply such authority to bring suit) (citations omitted).
Thus, Plaintiff may not bring her action as a claim for obstruction of justice under any of the statutes in the section on obstruction of justice. 18 U.S.C. § 1501 et seq.
B. 18 U.S.C. § 1961 et seq.
The Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq., provides a private right of action to any person injured in her business or property by reason of a violation of § 1962 of the chapter. Lerner v. Fleet Bank, N.A., 459 F.3d 273, 283 (2d Cir. 2006) (quoting 18 U.S.C. § 1964(c)). In order to state a civil RICO claim, Plaintiff must allege "(1) that the defendant (2) through the commission of two or more acts (3) constituting a pattern (4) of racketeering activity (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an enterprise (7) the activities of which affect interstate or foreign commerce. 18 U.S.C. § 1962(a)-(c) (1976)." Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir. 1983). The RICO violation must cause injury to business or property. Lundy v. Catholic Health System of Long Island, Inc., 711 F.3d 106, 119 (2d Cir. 2013) (quoting Anatian v. Coutts Bank (Switz.) Ltd., 193 F.3d 85, 88 (2d Cir. 1999)). The pattern of racketeering activity must consist of two or more predicate acts of racketeering listed in 18 U.S.C. § 1961(1), (5). Id. In addition, Plaintiff must show that the predicate acts "amount to, or pose a threat of, continuing criminal activity." GICC Capital Corp. v. Tech. Fin. Grp., Inc., 67 F.3d 463, 465 (2d Cir. 1995).
Plaintiff has failed to allege any facts whatsoever suggesting the existence of a pattern of racketeering by Defendant. See 18 U.S.C. § 1961(1). Furthermore, the statute of limitations for a civil RICO claim is four years. See Agency Holding Corp. v. Malley-Duff Assocs., Inc., 483 U.S. 143, 156 (1987). The limitations period starts to run when the plaintiff discovers or should have discovered the injury. See In re Merrill Lynch Ltd. Partnerships Litigation, 154 F.3d 56, 58 (2d Cir. 1998) ( per curiam ). Plaintiff discovered her alleged injury in May or June of 1999 when Defendant told her she had to move her van from storage and did not commence this action until December 31, 2013.
C. 42 U.S.C. § 1981/ADA
Plaintiff alleges generally that she is disabled and Black, and, in conclusory fashion, that Defendant's wrongful acts were motivated by her disability and her race. (Dkt. No. 1 at ¶ 2.) 42 U.S.C. § 1981 provides for equal rights based upon race, and covers both public and private conduct. 42 U.S.C. § 1981(a), (c). To state a claim, a plaintiff must "specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713-14 (2d Cir. 1994). "[A] complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Act, fails to state a claim...." Id. (quoting Martin v. N.Y State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) ( per curiam )).
The Americans with Disabilities Act ("ADA") provides for protection against discrimination based upon disability. 42 U.S.C. § 12101 et seq. Plaintiff does not cite the ADA as a basis for her claims, but given the liberality with which pro se complaints are treated, this Court has interpreted Plaintiff's claim to raise the strongest claims it suggests. Burgos, supra. Even assuming that Plaintiff cited the appropriate statute for disability discrimination, in the appropriate venue, Plaintiff's claims cannot survive.
Title III of the ADA applies to public accommodations and provides that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). To state a claim under Title III, a plaintiff must allege that he is disabled as defined by the ADA and that the defendant owns or operates a public accommodation and has discriminated against the plaintiff within the meaning of the ADA. See Roberts v. Royal Atlantic Corp., 542 F.3d 363, 368 (2d Cir. 2008).
Although Plaintiff makes the general statement that she is both Black and disabled, there are no other facts stated that even remotely support her claim that Defendant discriminated against her under either § 1981 or the ADA. It is unclear how Plaintiff determined that Defendant was discriminating against her based on race and/or her unidentified disability. According to her Complaint, Plaintiff informed Defendant that she and her mother were disabled at the time she arranged to move the van into the storage unit, and Defendant presumably became aware that Plaintiff was Black either when she made arrangements to store the van or brought the van in for storage. The van remained in storage with Defendant for some four months before Defendant informed Plaintiff it would have to be moved. (Dkt. No. 1 at ¶¶ 3, 6.) Furthermore, Plaintiff has alleged that in June of 1999, Defendant contacted her and offered to transfer the van to a place where it could be stored. Id. at ¶ 14.
The statute of limitations for § 1981 claims is four years. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382-83 (2004). A plaintiff's discrimination claim accrues when she knew or should have known about the discriminatory action. Washington v. Cit of Rockland, 373 F.3d 310, 317-18 (2d Cir. 2004). The statute of limitations for ADA claims is three years. Johnson v. DHS/ICE, No. 13-CV-288A (Sr), 2013 WL 6669232, at *4, 2013 U.S. Dist. LEXIS 177787, at *11 (W.D.N.Y. Dec. 18, 2013) (citing Chisholm v. United of Omaha Life Ins., 514 F.Supp.2d 318, 326 (D. Conn. 2007)).
In this case, as stated above, Defendant's allegedly wrongful act in requiring Plaintiff to move her van from the storage area occurred in May and June of 1999, more than fourteen years ago. Id. at ¶ 6. Plaintiff filed this action on December 13, 2013, long after both statutes of limitations expired. Statutes of limitation are subject to equitable tolling where it is necessary to prevent unfairness to a plaintiff who is not at fault for her lateness in filing. Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011). Equitable tolling is an extraordinary measure that applies only when the plaintiff is prevented from filing despite exercising that level of diligence which could reasonably be expected under the circumstances. Id. "The burden of demonstrating the appropriateness of equitable tolling lies with plaintiff." Boos v. Runyan, 201 F.3d 178, 185 (2d Cir. 2000). Equitable tolling has been allowed where a complainant actively pursued judicial relief during the statutory period and was induced or tricked by his or her adversary's misconduct to let the time pass. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990). Equitable tolling may also be proper when plaintiff "(1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply." Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (citation and internal quotation marks omitted).
In this case, there are no allegations in the Complaint suggesting that grounds might exist for equitably tolling any statutes of limitation that would apply in this lawsuit. Plaintiff is clearly aware of how to commence lawsuits. As stated above, in addition to the multiple cases that she filed in the Northern District of New York on December 13, 2013, plaintiff filed three cases in the Northern District of New York in 2010, claiming that various wrongs had been committed against her. Each of the cases from 2010 have been closed. Furthermore, Plaintiff commenced an action against Liberty Mutual Insurance Company in the United States District Court, Northern District of Texas in 2000. The action, which was dismissed for failure to prosecute, reveals that Plaintiff knew how to and had commenced a lawsuit involving another matter prior to the time the statute of limitations on her claims in this lawsuit expired, and she failed to do so. Given the foregoing, there is no reason why any applicable statutes of limitations should be tolled in this action.
D. 15 U.S.C. § 2301, et seq.
The Magnuson-Moss Warranty Act ("MMWA"), 15 U.S.C. §§ 2301, et seq., "provides a private right of action for a consumer against a manufacturer or retailer who, inter alia, fails to comply with the terms of a written or implied warranty." Jackson v. Eddy's LI RV Ctr., Inc., 845 F.Supp.2d 523, 530 (E.D.N.Y. 2012) (citations omitted). The MMWA applies to "consumer products, " defined in relevant part as "any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes...." 15 U.S.C. § 1503(1). Therefore, the MMWA has no application to Plaintiff's claim against Defendant for requiring her to remove her van from storage.
E. Breach of Contract
If Plaintiff had any claim at all against Defendant based upon the facts alleged in the Complaint, it likely would have been a state law claim for breach of contract. "It is a fundamental precept that federal courts are courts of limited jurisdiction." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal subject matter jurisdiction exists only when a "federal question" is presented (28 U.S.C. § 1331), or where there is "diversity of citizenship" and the amount in controversy exceeds $75, 000.00 (28 U.S.C. § 1332). See Townsend v. L.T. Auto Transport, Inc., No. 1:13-CV-1601 (MAD/CFH), 2014 WL 1572801, at *3, 2014 U.S. Dist. LEXIS 54188, *3 (N.D.N.Y. Apr. 18, 2014).
Plaintiff has failed to plead any viable federal law claim and, for the reasons discussed above, would be unable to correct that deficiency in an amended pleading in this case. Diversity jurisdiction under 28 U.S.C. § 1332 requires that "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between... citizens of different States." 28 U.S.C. § 1332(a)(1). Plaintiff is seeking $50, 000 in damages, which does not satisfy the diversity jurisdiction amount in controversy requirement. Therefore, even if venue were proper, the District Court is without subject matter jurisdiction over a breach of contract claim.
Plaintiff's breach of contract would be barred by the statute of limitations in any event. A federal court sitting in diversity will apply the forum state's choice of law rules. See Arthur Glick Truck Sales, Inc. v. Stuphen East Corp., 914 F.Supp.2d 529, 538 n.11 (S.D.N.Y. 2012). New York applies a "center of gravity" or "grouping of contacts" analysis in determining choice of law in breach of contract claims. Matter of Allstate(Stolarz), 597 N.Y.S.2d 904, 906-07 (1993); see also Maryland Cas. Co. v. Continental Cas. Co., 332 F.3d 145, 151 (2d Cir. 2003). "Under this approach, courts may consider a spectrum of significant contacts, including the place of contracting, the places of negotiation and performance, the location of the subject matter, and the domicile or place of business of the contracting parties." Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1539 (2d Cir. 1997).
The significant contacts are with the State of Texas in this case, and the statute of limitations on a breach of contract claim in Texas is four years, with the claim accruing at the time of the breach. See Skidmore Energy, Inc. v. Maxus (U.S.) Exploration Co., 345 S.W.3d 672, 685 (Tex. App.-Dallas 2011).
VI. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has moved for appointment of counsel. (Dkt. No. 3.) Courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997)). Instead, a number of factors must be carefully considered in ruling upon such a motion. Id. Before any of those factors are considered, the court must first ascertain whether the indigent's claims seem likely to be of substance. Id. Given this court's finding that Plaintiff's Complaint is frivolous, and could not remain in this district, the Court also finds that the Complaint cannot meet the first requirement for appointment of counsel and denies Plaintiff's motion for the appointment of counsel.
Based upon the foregoing, the Court recommends dismissal of this case with prejudice. As noted above, generally when the court dismisses a pro se complaint sua sponte, it should afford the plaintiff the opportunity to amend at least once, Gomez, 171 F.3d at 795, unless any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). In this case, the Court finds that any attempt by Plaintiff to amend this Complaint would be futile. Plaintiff now has multiple cases pending in this district. She has been given the opportunity to amend in some cases where she has named defendants that are in the Northern District of New York.
The difference in this case is that Plaintiff has named a Defendant over which the Court has no jurisdiction. This Court would not keep the action in any event because venue is improper. The Court only has the option of dismissing or transferring the case. Because in addition to the improper venue, the claims are largely vague and conclusory, cannot be brought under any of the federal statutes cited, and all appear to be barred by any statute of limitations, this case presents an extraordinary circumstance warranting dismissal rather than transfer to the Northern District of Texas.
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff's motion to proceed in forma pauperis (Dkt. No. 2) is GRANTED FOR PURPOSES OF FILING ONLY, and it is
RECOMMENDED, that the Plaintiff's Complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), and it is
ORDERED, that plaintiff's motion for appointment of counsel (Dkt. No. 3) is DENIED, and it is
ORDERED, that the Clerk's Office provide Plaintiff with copies of the unpublished decisions cited herein with a copy of this Order and Report-Recommendation.
Pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(c), the parties have FOURTEEN (14) DAYS within which to file written objections to the foregoing report. Any objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
Ralston Brown, Bridgeport, CT, pro se.
Daniel P. Scapellati, Halloran & Sage, Hartford, CT, for Defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS
JANET BOND ARTERTON, District Judge.
*1 Plaintiff Ralston Brown, proceeding pro se, brought this action against Defendant State Farm Fire and Casualty Company alleging negligent misrepresentation, gross negligence, negligence, obstruction of justice, violation of the Connecticut Unfair Trade Practices Act ("CUTPA"), and three counts of fraud arising from Defendant's denial of Plaintiffs claim for insurance proceeds and the subsequent litigation regarding that denial. ( See Amend. Compl. [Doc. # 40].) Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Defendant now moves [Doc. # 41] to dismiss the Amended Complaint in its entirety arguing that (1) Plaintiffs claims are barred by the doctrine of res judicata, (2) the Court lacks subject matter jurisdiction in that Plaintiff cannot establish that the amount in controversy exceeds $75, 000, (3) the action should be dismissed under the Colorado River abstention doctrine, and (4) Plaintiff has failed to state a claim for which relief can be granted. For the following reasons, Defendant's motion to dismiss is granted.
A. Factual Background
This case arises out of an insurance coverage dispute between the parties. Defendant issued Plaintiff a homeowner's policy covering a house located at 100-102 Harral Avenue, Bridgeport, Connecticut for damage from fire. ( See Ex. B to Def.'s Mot. to Dismiss.) Defendant also issued a business policy for the same address. ( See Myers Aff., Ex. to Amend. Compl.) However, the policy listed the incorrect address for the insured location, as Plaintiff did not own a business at 100-102 Harral Avenue. ( See Amend. Compl.) On March 22, 2006, Defendant sent Plaintiff a cancellation notice, informing Plaintiff that both policies would be cancelled effective April 6, 2006 if the premium payment of $729.85 was not received by that date. ( See Myers Aff., Ex. to Amend. Compl. ¶ 16.) Plaintiff failed to pay the outstanding balance and the policies were cancelled as of April 6, 2006. ( See id. ¶ 17.) On April 21, 2006, the dwelling at 100-102 Harral Avenue was destroyed by fire. ( See Ex. B to Def.'s Mot. to Dismiss, ¶ 14.) Plaintiff suffered property damage and lost rental income as a result of the fire. Defendant refused coverage for these losses under the homeowners and business policies, citing the prior cancellation of those policies. ( See id. ¶¶ 7-8.)
B. Procedural Background
On April 19, 2007, Plaintiff filed suit against Defendant in the Connecticut Superior Court for the Judicial District of Fairfield at Bridgeport, see Brown v. State Farm Fire and Casualty Company, FBT-CV-075008258-S (hereinafter " Brown I "), alleging wrongful denial of coverage under the homeowners and business policies. ( See Ex. B to Def.'s Mot. to Dismiss.) At the time this suit was filed, the parties had conducted discovery and Defendant had filed and fully briefed a motion for summary judgment that had been pending for several months. ( See id. ) Plaintiff's allegations in this action arise in part from the discovery conducted in Brown I. Plaintiff alleges that Defendant falsified Plaintiffs insurance applications and policies and that Defendant made false statements regarding these applications and policies in affidavits submitted to the Connecticut Superior Court. ( See Amend. Compl.) Although the parties have failed to keep the Court apprised of the status of Brown I since the pending motion was filed, based on a review of Connecticut's electronic court filing system, the Court takes judicial notice of the fact that judgment entered in Defendant's favor after trial on December 24, 2012, and that on January 25, 2013, Plaintiff filed an appeal, which is currently pending.
*2 On May 27, 2011, Plaintiff filed a second suit against Defendant in this District, see Brown v. State Farm Fire and Casualty Company, No. 10cv833 (CFD) (hereinafter "Brown II"), alleging that Defendant had breached the business policy by denying coverage for the losses resulting from the April 21, 2006 fire. On September 12, 2011 Judge Droney denied Plaintiffs motion to amend his complaint to add a CUTPA claim, holding that the proposed amendment was futile because Plaintiff had not alleged that Defendant committed unfair claim settlement practices with such frequency as to indicate a general business practice. ( See Brown II, Sept. 12, 2011 Ruling [Doc. # 58].) On September 20, 2011, Judge Droney granted Defendant's motion for summary judgment, holding that Plaintiffs suit was barred by the suit-limitation clause in the business policy, and denied as futile Plaintiffs second motion to amend his complaint, in which Plaintiff attempted to add many of the claims he asserts in this action. ( See Brown II, Sept. 20, 2011 Ruling [Doc. # 59].) On September 16, 2011, several days before judgment entered in favor of Defendant in Brown II, Plaintiff filed the present action, in which he attempts for a third time to raise claims against Defendant arising from Defendant's denial of coverage for the April 21, 2006 loss and from the subsequent litigation surrounding that denial.
FN1. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although detailed allegations are not required, a claim will be found facially plausible only if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. Conclusory allegations are not sufficient. Id. at 678-79; see also Fed.R.Civ.P. 12(b)(6). "A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir.2008) (internal citations and quotation marks omitted).
Defendant argues that the Amended Complaint should be dismissed in its entirety because (1) Plaintiffs claims are barred by the doctrine of res judicata, (2) the Court lacks subject matter jurisdiction in that Plaintiff cannot establish that the amount in controversy exceeds $75, 000, (3) the action should be dismissed under the Colorado River abstention doctrine, and (4) Plaintiff has failed to state a claim for which relief can be granted. Because the Court concludes that this action is barred by the doctrine of res judicata, it will not address Defendant's additional arguments.
Defendant argues that Judge Droney's summary judgment ruling in Brown II has preclusive effect on all of Plaintiffs claims. "The doctrine of res judicata, or claim preclusion, applies in later litigation if an earlier decision was (1) a final judgment on the merits, (2) by a court of competent jurisdiction, (3) in a case involving the same parties or their privies, and (4) involving the same cause of action." Hecht v. United Collection Bureau, Inc., 691 F.3d 218, 221-22 (2d Cir.2012). The parties do not dispute that the summary judgment opinion in Brown II was a final judgment by a court of competent jurisdiction involving the same parties. However, Plaintiff does argue that Judge Droney's opinion was not "on the merits, " and that he did not have a full and fair opportunity to litigate his claims in Brown II.
Plaintiff argues that because Judge Droney granted judgment in favor of Defendant on Plaintiffs breach of contract claim on the basis that it was untimely under the suit limitation clause in the business policy, the judgment in Brown II was not "on the merits" for purposes of res judicata. A decision is "on the merits" for res judicata purposes if it "reaches and determines the real or substantial grounds of action or defense as distinguished from matters of practice, procedure, jurisdiction, or form, " Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir.1968), and "[b]oth claim preclusion and issue preclusion result from summary judgments that rest on the lack of any genuine issue of material fact going to the merits of a claim or defense." Charles A. Wright & Arthur R. Miller, et al., 18A Federal Practice and Procedure § 4444. In Brown II Judge Droney addressed the substance of Defendant's defense that Plaintiffs suit was barred by the suit limitation clause in the business policy claim and found that Plaintiff had failed to present a genuine issue of material fact as to whether his failure to bring suit within the contractual limitation period was justified. ( See Brown II Sept. 20, 2011 Ruling at 4-7 & n. 7.) Therefore, the summary judgment opinion in Brown II was "on the merits" for purposes of res judicata.
*3 Plaintiff also appears to argue that res judicata should not apply to bar this suit because he did not have a full and fair opportunity to raise his present claims in Brown II. "[R]es judicata, or claim preclusion prevents a party from litigating any issue or defense that could have been raised or decided in a previous suit, even if the issue or defense was not actually raised or decided." Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir.1992) (internal quotation marks and citations omitted). "Whether or not the first judgment will have preclusive effect depends in part on whether the same transaction or connected series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first." Id. (internal quotation marks and citations omitted). Thus, if Plaintiff could have raised his present claims in Brown II they will be barred by the application of res judicata. Plaintiff admits that he in fact attempted to bring many of the claims at issue in this suit in Brown II. ( See Pl.'s Opp'n [Doc. # 44] at 5 ("The plaintiff made several attempts to amend the complaint, however upon a lengthy analyst [sic] of the complaint the court (Judge Droney) concluded that it would be futile to amend the complaint.").)FN2 Plaintiff also raised the issue of the alleged false statements made by Defendant when rejecting Plaintiffs insurance claim and during the Brown I litigation at several points during the course of Brown II. ( See, e.g., Brown II Pl.'s Mem. Supp. of Mot. Summ. J. [Doc. # 8].) Thus, the evidence in support of and the facts essential to Plaintiff's present claim were before the court in Brown II and all of the alleged misstatements had occurred prior to the entry of judgment in that action. Furthermore, each of Plaintiff's claims arises from the same transaction or series of transactions in that Plaintiffs claims all relate to Defendant's actions in denying his insurance claim and its continued denial of that claim during the litigation of the original coverage dispute in Brown I. For these reasons, the claims at issue in this action could have been brought in Brown II and thus constitute the same "cause of action" for res judicata purposes. Therefore, all of Plaintiffs claims are barred by the doctrine of res judicata.
FN2. To the extent that the Brown II court denied as futile Plaintiffs motion to amend his complaint to bring some of the claims alleged in the present suit ( see Brown II, Sept. 20, 2011 Ruling), that decision would also have preclusive effect on those claims. See Casciani v. Town of Webster, No. 11-4372-cv, 2012 WL 5416618, at *1 (2d Cir. Nov.7, 2012) (holding that where the district court considered each claim in the proposed amended complaint and denied leave to amend as futile the decision "constitute[d] a final judgment sufficient to preclude any claims contained in the proposed amended complaint" (citing Flaherty v. Lang, 199 F.3d 607, 615 (2d Cir.1999))). Plaintiffs proposed amended complaint in Brown II included claims for CUTPA violation, negligence, and fraud. ( See Brown II, Mot. to Amend Compl. [Doc. # 23].) Thus, Plaintiffs CUTPA, fraud, and negligence claims in the present action are also precluded by Judge Droney's denial of the motion to amend in Brown II. Furthermore, to the extent that Plaintiff alleges the new claims of gross negligence and obstruction of justice in violation of 18 U.S.C. §§ 1501-07 for the first time in this action, these claims fail as a matter of law because Connecticut does not recognize a private cause of action for gross negligence as distinct from negligence, see Gersich v. Enterprise Rent A Car, No. 3:95CV01053(AHN), 1995 WL 904917, at *2 (D.Conn. Nov.20, 1995), and 18 U.S.C. §§ 1501-07 is a federal criminal statute that does not give rise to a private cause of action. See De Haven v. Schwarzenegger, 123 F.App'x 287, 289 (9th Cir.2005) ("[O]bstruction of justice is a criminal charge that does not provide a private cause of action."). Cf. Clissuras v. City Univ. of New York, 90 F.App'x 566, 567 n. 1 (2d Cir.2004) ("In their cavalcade of claims, plaintiffs make creative arguments regarding obstruction of justice and theft of identity. These claims are either time-barred or do not constitute private federal causes of action, or both.")
For the foregoing reasons, Defendant's Motion [Doc. # 41] to Dismiss is granted. The Clerk is directed to enter judgment in favor of Defendant and to close the case.
IT IS SO ORDERED.
Joel Jeremiah Johnson, Batavia, NY, pro se.
Heather A. Giambra, Schroder, Joseph & Associates, LLP, Buffalo, NY, Raymond A. Cowley, Cox Smith, McAllen, TX, for Defendants.
DECISION AND ORDER
H. KENNETH SCHROEDER, JR., District Judge.
*1 This case was referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive matters. This matter is now before the Court on plaintiff's response to the Court's Order directing plaintiff to show cause why the complaint should not be dismissed as against certain defendants for his failure to serve said defendants (Docket No. 12) and plaintiff's motions for the appointment of counsel (Docket Nos. 16-17). For the following reasons, plaintiff is granted an enlargement of time, pursuant to Fed.R.Civ.P. 4(m), to serve the summons and complaint upon DHS/ICE, Michael Phillips and Todd Tryon, and plaintiffs motions for the appointment of counsel are denied without prejudice.
Plaintiff, Joel Jeremiah Johnson, an immigration detainee at the Buffalo Federal Detention Facility ("BFDF"), filed a pro se complaint under, inter alia, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and the Americans with Disabilities Act ("ADA"), Title III, 42 U.S.C. § 12182 et seq., against defendants, DHS/ICE (Department of Homeland Security, Immigration and Customs Enforcement), FN1 Michael Phillips, ICE Local Field Office Director, Todd Tryon, Acting Facilities Director, Lieutenant Cinotti, Detention Officer Hall and Detention Officer Doddy. Plaintiff paid the filing fee and summonses were issued, and plaintiff proceeded to attempt to serve the summonses and complaint upon each defendant. Defendants Cinotti, Hall and Doddy have appeared in this action and their motion for summary judgment is pending but defendants DHS, ICE, Tryon and Phillips have not.
FN1. DHS/ICE is one defendant.
On July 25, 2013, the Court (Hon. William M. Skretny) issued an Order directing that plaintiff show cause why the complaint should not be dismissed as against DHS/ICE, Phillips and Tryon ("federal defendants")FN2 based on plaintiffs failure to effect service upon said defendants pursuant to Fed.R.Civ.P. 4(m). Plaintiff responded to said Order by providing the Court with copies of "Proof[s] of Service." (Docket No. 12.) With respect to ICE, the Proof of Service indicates that on April 17, 2013, plaintiff served a "Supervisor, " Mr. Delong, a person plaintiff claims was designated to accept service on behalf of ICE; with respect to both DHS and Michael Phillips, the Proofs of Service indicate that plaintiff served them by mailing the summons and complaint by certified mail to Phillips on April 17, 2013; and with respect to Todd Tryon, plaintiff claims that he left the summons and complaint with someone by the name of "Johwinker" or "Vohwinker" at the BFDF and that this individual was a person designated to accept service for Tryon. ( Id. )
FN2. The other defendants-Cinotti, Doddy and Hall-are employees of Valley-Metro Barbosa Group, a privately owned security company providing detention officers at BFDF under a contract with ICE. (Docket No. 13-4, Defendants' Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, ¶ ¶ 1-2.) nonparty agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
A. Service on Federal Agencies and Employees: Rule 4(i)
Pursuant to Fed.R.Civ.P. 4(i)(2), in order to serve a federal agency (DHS, ICE) or an employee sued in an official capacity, "a party must serve the United StatesFN3 and also send a copy of the summons and complaint by registered or certified mail to the agency, corporation, officer, or employee."
FN3. To serve the United States, a party must:
(A) (i) deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought-or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk-or
(ii) send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney's office;
(B) send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and
(C) if the action challenges an order of a nonparty agency of officer of the United States, send a copy of each by registered or certified mail to the agency or officer.
*2 Pursuant to Fed.R.Civ.P. 4(i)(3), in order to serve an officer or employee sued individually (Phillips and Tryon) "for an act or omission occurring in connection with duties performed on the United States' behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)."FN4
(e) Serving an Individual Within a Judicial District of The United States. Unless federal law provides otherwise, an individual-other than a minor, an incompetent person, or a person whose waiver has been filed-may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
Based on the Proofs of Service submitted by plaintiff, it is clear that defendants DHS/ICE, Phillips and Tryon have not been served properly pursuant to Rule 4(i)(2)-(3). First, there is no proof that plaintiff served the United States, pursuant to Rule 4I(i)(1), which is required for serving both an agency of the United States and an officer or employee sued in either or both his official or individual capacity. Fed. R.Civ.P. 4(i)(2)-(3). Specifically, there in no proof that (A) plaintiff "delivered" a copy of the summons and complaint to the United State Attorney for the Western District of New York or sent a copy of the summons and complaint by registered or certified mail to the civil process clerk at the United States Attorney's Office; and (B) sent a copy of the summons and complaint by registered or certified mail to the Attorney General of the United States in Washington, D.C. Service on the United States as set forth in Rule 4(i)(1) is required for proper service on both a federal agency and an officer or employee. Id., 4(i)(2)-(3). As to DHS/ICE and Phillips, the Proofs of Service indicate that plaintiff sent the summons and complaint by certified mail to Phillips. Plaintiff, however, did not serve the United States as required. As to Tryon, not only did plaintiff fail to serve the United States, see Fed.R.Civ.P. 4(i)(1)(A)(B), he also failed to serve Tryon properly pursuant to Rule 4(e). There is no evidence that the individual plaintiff claimed to have "left" and "served" the summons and complaint on, Vohwinker or Johwiner, was an individual designated to accept service on behalf of Tryon. (Docket No. 12.) Accordingly, plaintiff has not established that he properly served any of the federal defendants.
B. Enlarge Time to Serve Summons and Complaint: Rule 4(m)
Rule 4(m) provides that if a defendant is not served within 120 days after the complaint is filed, "the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time." The Court, however, "shall" extend the time for service for an appropriate period of time if the plaintiff shows "good cause" for the failure to serve the defendant within 120 days. Fed.R.Civ.P. 4(m). District courts also have discretion to enlarge the 120-day period even in the absence of good cause. See Zapata v. City of New York, 502 F.3d 192, 196-67 (2d Cir.2007).
The Court notes that a prisoner or immigration detainee generally proceeds in forma pauperis in this Court and is therefore entitled automatically to service of the summons and complaint by the United States Marshals Service. See Fed.R.Civ.P. 4(c)(3); 28 U.S.C. § 1915(d). In those situations, the plaintiff is entitled to rely on the Marshals Service to perfect service and "good cause" under Rule 4(m) is shown when plaintiff provides proper instructions to the Marshals Service-i.e., properly identifies the defendant-to personally serve the summons and complaint upon the defendant and the Marshals Service fails to serve the defendant. Romandette v. Weetabix, 807 F.2d 309, 311 (2d Cir.1986); see also Murray v. Pataki, 378 Fed.Appx. 50, 2010 WL 2025613, at *2 (2d Cir. May 24, 2008) (Summary Order) ("As long as the pro se prisoner provides the information necessary to identify the defendant, the Marshals' failure to effect service automatically constitutes good cause' for an extension of time within the meaning of Rule 4(m).") (citations omitted)).
*3 For those pro se individuals not proceeding in forma pauperis and thus not entitled to Marshals Service automatically, they may seek an order from the Court directing the Marshals Service to serve the defendant(s) for a fee. See Fed.R.Civ.P. 4(c)(3). The granting of such an order is discretionary with the Court. It is the general practice of the Clerk of Court that at the time of filing of a complaint and paying of the filing fee, a pro se litigant is provided a Notice Regarding Service of Summons and Complaint pursuant to Rule 4(m) and a form motion requesting the Court to order Marshals Service. In this case, the Docker Report notes that summonses were issued to plaintiff and that he was forwarded the Clerk's Office's Notice. Plaintiff did not seek Marshals Service and attempted to serve the summonses and complaints on his own. He, however, failed to serve the federal defendants properly.
As noted, if service is not made within 120 days the Court shall dismiss the action without prejudice as to that defendant or "direct that service be effected within a specified time." Fed.R.Civ.P. 4(m). The Court shall enlarge the time to serve the summons and complaint upon a showing of good cause, and that the Court has discretion to enlarge the time in the absence of good cause. While there is "an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training... such protection does not exempt a party from compliance with relevant rules of procedural and substantive law....'" Sellers v. Royal Bank of Canada, 2013 WL 1222668, at *1 (S.D.N.Y., March 21, 2013) (citing and quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)). Moreover, ignorance of the law, even on the part of a pro se litigant, is not "good cause" under Rule 4(m). Amnay v. Del Labs, 17 F.Supp.2d 283, 285 (E.D.N.Y.2000).
Here, while plaintiffs ignorance of the manner in which he had to serve the federal defendants may not establish good cause under 4(m), the Court does have discretion to extend the time to serve the summons. Zapata, 502 F.3d at 196; see also DeLuca v. Accessed Group, Inc., 695 F.Supp.2d 54, 67 (S.D.N.Y., Feb.9, 2010) ("A Court has discretion to grant an extension to serve process even absent a showing of good cause.") In determining whether to exercise this discretion, the Court should consider the following factors: "(1) whether the applicable statute of limitations would bar the refiled action; (2) whether the defendant had actual notice of the claims asserted in the complaint; (3) whether the defendant had attempted to conceal the defect in service; and (4) whether the defendant would be prejudiced by the granting of plaintiffs request for relief from the provision.'" Jordan v. Forfeiture Support Associates, 928 F.Supp.2d 588, 598 (E.D.N.Y., March 5, 2013) (quoting Carroll v. Certified Moving & Storage, Co., 2005 WL 1711184, at *2 (E.D.N.Y. July 19, 2005) (internal quotation marks omitted)). The Court finds that a review of these factors weighs in favor of granting an enlargement of time under Rule 4(m).
*4 The first factor is the only factor that weighs against enlarging plaintiffs time to serve the summons and complaint. The statute of limitations for plaintiffs Bivens and ADA claims is three years. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir.1999) (Bivens); Chisholm v. United of Omaha Life Ins. Co., 514 F.Supp.2d 318 (D.Conn., 2007) (ADA, Title III).FN5 Plaintiffs claims accrued on December 19, 2012, when he alleges that he was being transported from BFDF to ICE's offices in Buffalo, New York on an ICE bus and ordered to use a wheelchair he had not used before. The wheelchair did not contain proper safety equipment to secure its wheels on the bus and to strap plaintiff in the wheelchair and that, upon the return trip to BFDF, defendant Hall was driving to fast and plaintiff fell out of the chair and struck his head and body thereby causing serious injury. (Docket No. 1, Complaint, at ¶¶ 8-10.) The statute of limitations has not expired and therefore if the complaint were to be dismissed against the federal defendants, plaintiff would still have an opportunity to re-file his claims against the federal defendants.
FN5. The Court notes that the facts alleged may support a tort claim against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § § 1346(b)(1); 2401(b), provided that the plaintiff presented [the claim] in writing to the appropriate Federal agency within two years after such claim accrues...." Id., § 2401(b). See Accolla v. United States Government, 381 Fed.Appx. 71, 2010 WL 2511566, at * (2d Cir. June 22, 2010) (Summary Order) ("The statute provides that a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues....' An FTCA claim accrues at the time of the plaintiffs injury....") (citations omitted)).
Plaintiff has not set forth a claim under the FTCA in the complaint nor does he allege that he presented such a claim to DHS/ICE. As noted, the statute of limitations for presenting such an administrative claim with the applicable federal agency is two years from the date of the injury. See 28 U.S.C. § 2401(b).
Second, while plaintiff did not properly serve the federal defendants, he did at least provide them or representatives of DHS/ICE with copies of the summons and complaint in different ways. He forwarded to Phillips, ICE's Field Officer Director, a copy of the summons and complaint by certified mail, and he provided to a "supervisor" at BFDF the summons and complaint on behalf of Tryon. It thus cannot be said that the federal defendants did not have notice of this claim. The third factor is not applicable or, at least, does not appear to be applicable. The fourth factor also supports granting an enlargement of time because while any defendant "will be burdened with the obligation to defend this lawsuit if the extension is granted, ... that does not rise to the level of prejudice necessary to tip the balance of this factor in [defendant's] favor." Lumbermens Mut. Cas. Co. v. Dinow, 2009 WL 2424198, at *4 (E.D.N.Y. Aug.6, 2009).
It is worth noting that while plaintiffs ignorance of Rule 4(i)'s requirements regarding service on a federal agency and officer or employee may not constitute good cause under 4(m), he did make what appears to be a good faith effort to serve the federal defendants. Accordingly, the Court finds that upon a review of the factors set forth above, plaintiff is granted a 60-day enlargement of time to serve the summons and complaint upon the federal defendants.
C. Motions for Appointment of Counsel
Plaintiff moves for the appointment of counsel and submits, inter alia, that he cannot afford an attorney and that the legal issues in his case are "very complicated." (Docket Nos. 16-17.) The Court find that, at this time, the appointment of counsel is not warranted.
Plaintiff has applied to the Court for appointment of counsel pursuant to 28 U.S.C. § 1915(e). There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir.1988). Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984). The factors to be considered in deciding whether or not to assign counsel include the following:
*5 1. Whether the indigent's claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts concerning his claim;
3. Whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder;
4. Whether the legal issues involved are complex; and
5. Whether there are any special reasons why appointment of counsel would be more likely to lead to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir.1986).
The Court must consider the issue of appointment carefully, of course, because "every assignment of a volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available for a deserving cause." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir.1989). Therefore, the Court must first look to the "likelihood of merit" of the underlying dispute, Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and "even though a claim may not be characterized as frivolous, counsel should not be appointed in a case where the merits of the... claim are thin and his chances of prevailing are therefore poor." Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir.2001) (denying counsel on appeal where petitioner's appeal was not frivolous but nevertheless appeared to have little merit).
The Court has reviewed the facts presented herein in light of the factors required by law and finds that the appointment of counsel is not warranted at this time. As noted, plaintiff alleges that the defendants violated his constitutional rights and Title III of the ADA when he was transported in an unsafe manner and this caused him to fall out of a wheelchair. The claims are brought against both federal defendants and three employees of a private contractor. The private contractor employees have brought a motion for summary judgment on the bases that as employees of private contractors they are not subject to suit under Bivens, see Minecci v. Pollard, ___ U.S. ___, 132 S.Ct. 671 (2012), and that the allegations of the complaint do not establish that Title III of ADA applies to the facts of this case. (Docket No. 13-3, Memorandum of Law). Accordingly, plaintiffs motion for appointment of counsel is denied without prejudice. It is the plaintiffs responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.
For the foregoing reasons, (1) plaintiff is granted a 60-day enlargement of time, pursuant to Fed.R.Civ.P. 4(m), to serve the summons and complaint upon defendants DHS/ICE, Michael Phillips and Todd Tryon as set forth in Fed.R.Civ.P. 4(I), and (2) plaintiffs motions for appointment of counsel (Docket No. 16-17) are denied. Plaintiff is advised that if he does not properly serve the federal defendants within 60-days of entry of this Decision and Order the complaint will be dismissed against them without prejudice.
*6 The Clerk of the Court is directed to forward to plaintiff along with this Order the Clerk's Office's Notice Regarding Service of Summons and Complaint with Attached Request for U.S. Marshal Service.
Travis Rose, Windsor, CT, pro se.
Christopher L. Brigham, Updike, Kelly & Spellacy, P.C., New Haven, CT, for Defendants.
ORDER ON MOTION TO DISMISS
MICHAEL P. SHEA, District Judge.
*1 Plaintiff, Travis Rose, filed suit against various administrators of Seton Hall University and the sixteen members of Seton Hall's Board of Trustees (collectively "Defendants"). Plaintiffs claims arise out of his involvement in and dismissal from a joint physician's assistant program between Seton Hall University and the University of Medicine and Dentistry of New Jersey. Defendants have moved to dismiss the Amended Complaint on two grounds: first, that this Court lacks personal jurisdiction over Defendants, and second, that the District of Connecticut is an improper venue. Fee doc. # 15]. Because I find that this is an improper venue, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part, and the Clerk is directed to transfer this case to the United States District Court for the District of New Jersey, the proper venue under 28 U.S.C. § 1391(b).
As a preliminary note, although Defendants have moved to dismiss the Amended Complaint on both personal jurisdiction and venue grounds, the Court is permitted to consider venue before personal jurisdiction, Leroy v. Great W. United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979), and has the authority to transfer venue even if it lacks personal jurisdiction over the defendant, Open Solutions Imaging Sys., Inc. v. Horn, 3:03-cv-2077, 2004 WL 1683158, *7 n. 12 (D.Conn. July 27, 2004) (citing Fort Knox Music, Inc. v. Baptiste, 257 F.3d 108, 111-12 (2d Cir.2001)). The question of personal jurisdiction in this case is considerably more difficult than the question of venue. Accordingly, the Court will consider Defendants' venue argument first.
Defendants argue that this district is an improper venue under 28 U.S.C. § 1391(b). That section provides that a federal civil action can be commenced in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. 28 U.S.C. § 1391(b). Plaintiff bears the burden of demonstrating that venue is proper by showing that at least one of these three conditions is met. Open Solutions, 2004 WL 1683158 at *4 (explaining that, although there is no Second Circuit precedent on this issue, imposing the burden on the plaintiff is the "better view" and is consistent with Second Circuit precedent with respect to showing proper jurisdiction under Rule 12(b)(2)).
Here, even construing Plaintiffs pro se complaint liberally, Gyadu v. Hartford Ins. Co., 283 F.Supp.2d 740, 744 (D.Conn.2003), I find that Plaintiff has failed to satisfy the venue requirements in § 1391(b). None of the Defendants resides in Connecticut, thus making § 1391(b)(1) inapplicable. ( See Am. Compl. [doc. # 6] at 1 (alleging that Defendants are citizens of Newark, New Jersey).) Moreover, with respect to § 1391(b)(2), Plaintiff does not claim that any of the events giving rise to his claim occurred in Connecticut. The claims arise out of his participation in program at Seton Hall University and the University of Medicine and Dentistry of New Jersey, both of which are located in New Jersey. Specifically, the Amended Complaint alleges that Defendants committed fraud by wrongfully calculating his grade point average, altering his transcripts, and wrongfully terminating Plaintiff from the Physician Assistant Program.FN1 ( See id. at 2.) Indeed, the only allegation related to this venue in the Amended Complaint-or in any of Plaintiffs other submissions-is Plaintiffs statement that he is a citizen of Connecticut. ( Id. at 1.) Like § 1391(b)(1), § 1391(b)(2) is therefore inapplicable. Finally, with respect to § 1391(b)(3), Plaintiff does not contend that there is no district in which this action may otherwise be brought, nor could he, as the allegations make clear that the District of New Jersey would be the proper venue here. Because Plaintiff has failed to show that this case meets any of the three conditions in 28 U.S.C. § 1391(b), I find that venue is improper.
FN1. In a later section, entitled "Waiver to Statute of Limitations, " the Amended Complaint confusingly refers to "prison officials placing him in confinement as a disciplinary measure after he had allegedly struck co-worker on the head-ear region with his fist following a verbal altercation." (Am. Compl. [doc. # 6] at 5.) This series of events is later connected to an individual "acting on behalf of Seton Hall University, " and thus appears to be related to the other events that occurred at Seton Hall. In addition, this unclear set of allegations makes no connection to Connecticut, and in fact refers to a complaint filed in "Fort Dix, New Jersey magistrate court." ( Id. )
*2 Defendants argue that, because this case was filed in the wrong venue, the Court should dismiss the Amended Complaint altogether. Section 1406(a) states that "the district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). "Whether dismissal or transfer is appropriate lies within the sound discretion of the district court." Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993). Given Plaintiffs pro se status and apparent lack of familiarity with venue rules, and because Defendants have not yet sought to dismiss Plaintiffs claims on any substantive grounds, I find that the interests of justice weigh in favor of transfer to the United States District Court of New Jersey rather than outright dismissal.FN2
FN2. Having exercised my discretion to transfer the case on venue grounds, and because Defendants concede that personal jurisdiction lies in the District of New Jersey, I need not reach the question whether this Court has personal jurisdiction over the Defendants.
For the foregoing reasons, Defendants' Motion to Dismiss is GRANTED in part and DENIED part. In addition, Plaintiffs Motion to Amend the Complaint [doc. # 19] and Plaintiffs Motion to Amend Document [doc. # 24] are DENIED as futile.FN3 Plaintiff's Motion for Extension of Time [doc. # 23] and Motion for Appointment of Counsel [doc. # 26] are DENIED as moot. The Clerk is directed to transfer this case to the District of New Jersey.
FN3. Although the Court "should freely give leave [to amend a complaint] when justice so requires" under Rule 15, Fed.R.Civ.P. 15(a)(2), "leave will be denied if the amendment would be futile." Vale v. City of New Haven Police Dep't, No. 3:11-cv-00632, 2013 U.S. Dist. LEXIS 143567, *2, 2013 WL 5532133 (D.Conn. Oct. 4, 2013). "An amendment is futile if the proposed new claim would not survive a motion to dismiss." Riddick v. Chevalier, No. 3:11-cv-1555, 2013 U.S. Dist. LEXIS 128008, *11, 2013 WL 4823153 (D.Conn. Sept. 9, 2013). Plaintiffs proposed amended complaint [doc. # 19-1] does not allege any facts that cure the venue problem, and thus would not survive a motion to dismiss. Plaintiffs October 1, 2013 motion to amend is somewhat ambiguous in that it does not state specifically which document Plaintiff seeks to amend. [ See doc. # 24]. It does, however, request leave to amend a "document file [sic] on 2013 SEP 16." [ See id. ] Because there was no complaint filed on that date, I find that the motion does not seek leave to amend the operative complaint. In any event, Plaintiffs opposition to the Motion to Dismiss, which was filed the same day [ see doc. # 25], does not even attempt to rebut Defendants' argument that the events giving rise to Plaintiffs claim occurred in New Jersey. Accordingly, I find that any amendment would be futile.
IT IS SO ORDERED.
Nadine V. Townsend, Albany, NY, pro se.
MAE A. D'AGOSTINO, District Judge.
*1 Plaintiff commenced this action pro se, along with ten other, separate actions, on December 31, 2013.FN1 In the instant action, Plaintiff seeks damages in the amount of $45, 000, 000 for harm to a van she alleges that Defendant caused while transporting the van from Texas to New York in 2000. See Dkt. No. 1.
FN1. See Townsend v. Dordofsky et al., 1:13-cv-1603 (MAD/ATB), Dkt. No. 4 at 3 n. 1 (collecting cases).
In a January 24, 2014. Report-Recommendation and Order, Magistrate Judge Christian F. Hummel granted Plaintiffs application to proceed in forma pauperis, denied Plaintiffs motion to appoint counsel, and reviewed the sufficiency of the complaint. See Dkt. No. 4. Magistrate Judge Hummel noted that Plaintiff alleged causes of action under several federal statutes, and determined that "Townsend has failed to allege a federal statute under which relief is available." Id. at 5. Construing the complaint liberally, Magistrate Judge Hummel then assessed whether the Court could exercise diversity jurisdiction over this matter if Plaintiff were granted leave to amend her complaint. Finding that a breach of contract claim under New York state law would be barred under the applicable statute of limitations, Magistrate Judge Hummel determined that any such amendment would be futile. See id. at 6. As such, Magistrate Judge Hummel recommended that the Court dismiss the complaint with prejudice for failure to allege subject matter jurisdiction. See id. at 7. Plaintiff has not objected to the Report-Recommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files "[g]eneral or conclusory objections or objections which merely recite the same arguments [that he presented] to the magistrate judge, " the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b) (1).
A litigant's failure to file objections to a magistrate judge's report and recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003) (holding that, "[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir.1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989) (holding that a pro se party's failure to object to a report and recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
*2 Having reviewed Magistrate Judge Hummel's Report-Recommendation and Order and the applicable law, the Court finds that Magistrate Judge Hummel correctly recommended that the Court should dismiss Plaintiffs complaint with prejudice. A review of Plaintiffs complaint makes clear that the Court lacks subject matter jurisdiction over this case. Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once "when a liberal reading of the complaint gives any indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991). An opportunity to amend, however, is not required where "the problem with [plaintiffs] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) (citation omitted). As the Second Circuit has explained, "[w]here it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). Magistrate Judge Hummel correctly recommended that the Court dismiss the complaint with prejudice because the Court lacks jurisdiction over this matter; and, therefore, amendment would be futile.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's Report-Recommendation and Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that this action is DISMISSED with prejudice; and the Court further
ORDERS that the Clerk of the Court shall close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on Plaintiff by regular mail.
REPORT-RECOMMENDATION and ORDER
CHRISTIAN F. HUMMEL, United States Magistrate Judge.
The Clerk has sent to the Court for review a complaint filed by pro se plaintiff Nadine Townsend ("Townsend"). Compl. (Dkt. No. 1). Townsend has also filed a motion to proceed in forma pauperis (IFP) (Dkt. No. 2) and requested appointment of counsel (Dkt. No. 3).
A. In Forma Pauperis Application
The Court has reviewed Townsend's IFP application. Dkt. No. 2. Because Townsend sets forth sufficient economic need, the Court finds that Townsend qualifies to proceed IFP.
B. Plaintiff's Complaint
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to proceed IFP, "the court shall dismiss the case at any time if the court determines that... the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's responsibility to determine that a plaintiff may properly maintain his complaint before permitting him to proceed with his action.
*3 Townsend brings this action against defendant LT Auto Transport alleging that on or about February 15, 2000, Townsend entered into a contract with defendant for the transport of her van from Texas to New York. Compl. ¶ 1. When defendant loaded the van onto its transport truck, the van functioned well. Id. ¶ 6. Moreover, Townsend indicated that she did not want the van driven or moved off the transport truck until it reached its final destination. Id. ¶¶ 5, 8. The defendant did not ship the van in the time frame indicated, delivering it late to New York. Id. ¶¶ 9, 11. When Townsend arrived to pick up the van in New York, the transmission was broken rendering the van inoperable. Id. ¶ 9. Townsend believes that the van was driven or otherwise handled improperly, resulting in damages for which the defendant refused to reimburse Townsend. Id. ¶¶ 10, 15, 19. Townsend alleges that the van had recently had a new engine installed in it which cost $30, 000 and that she was seeking compensatory and punitive damages in the range of $45 million dollars. Id. ¶ 20.
The Court is foremost concerned with whether we possess the jurisdiction to entertain this suit and provide the relief sought. It is well settled that a federal court, whether trial or appellate, is obligated to notice on its own motion the basis for its own jurisdiction. City of Kenosha, Wisconsin v. Bruno, 412 U.S. 507, 512 (1973); see also Alliance of Am. Ins. v. Cuomo, 854 F.2d 591, 605 (2d Cir.1988) (challenge to subject matter jurisdiction cannot be waived); FED. R. CIV. P. 12(h)(3) (court may raise basis of its jurisdiction sua sponte). When subject matter jurisdiction is lacking, dismissal is mandatory. United States v. Griffin, 303 U.S. 226, 229 (1938); FED. R. CIV. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.").
Thus, we begin with a review of the Court's jurisdiction to hear this case. Subject matter jurisdiction may be established in two ways: (1) if there is a federal question pursuant to 28 U.S.C. § 1331; or (2) if there is diversity of citizenship pursuant to 28 U.S.C. § 1332.
Townsend brings this action pursuant to multiple federal statutes, attempting to plead federal question jurisdiction. These statutes include The Federal Magnuson Moss Warranty Act, 15 U.S.C. § 2308(a)(c) ("MMWA"), 18 U.S.C. § 1501, and 18 U.S.C. § 1951. Compl. at 3.FN1 None of these statutes appear to be appropriate for the relief sought.
FN1. It appears that Townsend attempted to plead another statute as a basis for relief, but the citation for said statute was indecipherable.
The MMWA "provides a private right of action for a consumer against a manufacturer or retailer who inter alia fails to comply with the terms of a written or implied warranty." Jackson v. Eddy's LI RV Ctr., Inc., 845 F.Supp.2d 523, 530 (E.D.N.Y.2012) (citations omitted). These claims, distinguishable from a breach of contract, carry with them a four year statute of limitations. Id. at 531. Such actions require "an implied warranty arising under State law in connection with the sale by a supplier of a consumer product." Id. at 530 (internal quotation marks, alterations, and citations omitted). Townsend alleges the existence of a service contract. She was not buying a product. There are also no allegations that any written or implied warranties existed. Moreover, the wrong Townsend alleged occurred over thirteen years ago, far beyond the four year statute of limitations. Accordingly, it seems that this is an incorrect vehicle for the present suit.
*4 Similarly, 18 U.S.C. § 1501 deals with assault on a process server. This is clearly irrelevant to the chain of events which transpired in the present action.
Last, 19 U.S.C. § 1951 deals with interference with commerce by threats or violence. Specifically:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to so, or commits or threatens physical violence... in furtherance of a plan or purpose to do anything in violation of this section shall be fined... or imprisoned... or both.
Id., § 1951(a). In this case, Townsend does not allege that there was a robbery.FN2 or any type of extortionFN3. There was no taking of property, as Townsend voluntarily provided the van to defendant for its transport and received her van eventually upon its arrival in New York. Additionally, the defendant never threatened her or acted violently per Townsend's own description of the events. Instead, the events indicate a different cause of action, specifically that the defendant breached its contract with Townsend by delivering her van to New York late and not in the same condition as when it left Townsend's possession in Texas. Accordingly, as Townsend has failed to allege a federal statute under which relief is available, dismissal appears appropriate.
FN2. Robbery is defined as "the taking or obtaining of personal property from the person... against his will, by means of actual or threatened force, or violence, or fear of injury...." 18 U.S.C. § 1951(b)(1).
FN3. Extortion is defined as "the obtaining of property from another, with his [or her] consent, induced by wrongful use of actual or threatened force, violence or fear...." 18 U.S.C. § 1951(b)(2).
Despite the fact that the statutes that Townsend relied upon do not appear to support her claims, as a pro se litigant, her complaint must be read liberally. That, in conjunction with the fact that the civil cover sheet which Townsend completed seems to indicate that she also intended to plead jurisdiction by this Court pursuant to diversity, compels the undersigned to evaluate another basis for her claim. Again, as previously discussed, Townsend's allegations are best categorized as a claim for breach of contract, a state law tort.
For diversity jurisdiction to exist, the matter in controversy must exceed $75, 000 and the parties must be citizens of different states. 28 U.S.C. § 1332(a). Townsend seeks damages in the tens of millions of dollars. In order to sustain diversity jurisdiction, there must be complete or total diversity, in that "the citizenship of each plaintiff is diverse from the citizenship of each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). As Townsend is a citizen of New York and the defendant is allegedly a citizen of Texas, complete diversity appears to exist. In light of Townsend's pro se status, this Court would generally direct Townsend to amend her complaint to provide clearer details regarding diversity jurisdiction.
However, a district court need not grant leave to amend where any such amendment would be futile. Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000) unlawful (finding leave to replead would be futile where the complaint, even when read liberally, did not "suggest that the plaintiff has a claim that she has inadequately or inarffully pleaded and that she should therefore be given a chance to reframe"). "Where jurisdiction rests upon diversity of citizenship, a federal court sitting in New York must apply the New York choice-of-law rules and statutes of limitations." Stuart v. American Cyanamid Co., 158 F.3d 622, 626 (2d Cir.1998) (citations omitted). In New York, for a breach of contract claim, the statute of limitations for filing suit is six years. ABB Indus. Sys., Inc. v. Prime Tech., Inc., 120 F.3d 351, 360 (2d Cir.1997) (citing N.Y. CIV. Prac. L. § 213(2)). Moreover, "it is well settled that [in New York] the statute of limitations for breach of contract begins to run from the day the contract was breached, not from the day the breach was discovered, or should have been discovered." Id. (citations omitted). Accordingly, as Townsend's cause of action began to run in 2000, almost fourteen years ago, the fact that she just filed her complaint renders it futile as the statute of limitations has expired.
C. Motion for Appointment of Counsel
*5 Townsend has also filed a motion for appointment of counsel. Dkt. No. 3. In light of the present recommendation, this motion is denied without prejudice as moot at this time. However, in the event this recommendation is not adopted and the complaint is accepted by the Court, Townsend is free to renew her request for appointment of counsel.
WHEREFORE, it is hereby
ORDERED that plaintiffs IFP application (Dkt. No. 2) is GRANTED; and it is further
ORDERED that plaintiffs request for appointment of counsel (Dkt. No. 3) is DENIED WITHOUT PREJUDICE and with a right to renew if this Report and Recommendation is not adopted and the Court accepts Townsend's complaint for filing; and it is further
RECOMMENDED that pursuant to the Court's review under 28 U.S.C. § 1915 and § 1915A, Townsend's complaint is DISMISSED for failure to properly allege the Court's jurisdiction; and it is further
RECOMMENDED that, because of the futility of amendment, Townsend not be provided an opportunity to amend her complaint; and it is further
ORDERED that the Clerk serve a copy of this Report-Recommendation and Order on the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court "within fourteen (14) days after being served with a copy of the... recommendation." N.Y.N.D.L.R. 72.1(c) (citing 28 U.S.C. § 636(b)(1)(B)-(C)). FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.1993); Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).