United States District Court, S.D. New York
William Holmes Wappingers Falls, NY Pro Se Plaintiff.
N. Froehlich, Esq. Locke Lorde LLP New York, NY Counsel for
Defendant Caliber Home Loans, Inc.
Michael J. Sweeney, Esq. Law Offices of Michael J. Sweeney,
PC Yonkers, NY Counsel for Defendants Edward C. Klein and
Cohn & Roth.
Michael J. Siudzinski, Esq. New York State Office of the
Attorney General New York, NY Counsel for Defendants James V.
Brands and New York State Unified Court System.
OPINION & ORDER
KENNETH M. KARAS, District Judge.
William Holmes (“Plaintiff”), proceeding pro se,
brings this Action against Caliber Home Loans, Inc.
(“Caliber Home”), Edward C. Klein, Esq.
(“Klein”), Cohn & Roth, Leslie A. Baum
(“Baum”), Theodore Schroeder
(“Schroeder”), James V. Brands (“Justice
Brands”), Larry Spangler (“Spangler”),
John/Jane Does, and the New York State Unified Court System
(collectively, “Defendants”), alleging that
Defendants violated New York General Business Law § 349,
the Racketeering Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1961, and 42 U.S.C.
§§ 1982, 1985, and 1986 during the course of a
foreclosure proceeding initiated in New York State Supreme
Court. Caliber Home, Klein, Cohn & Roth,
Justice Brands, and the New York State Unified Court System
(collectively, “Moving Defendants”) have filed
Motions To Dismiss Plaintiff's Amended Complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and
12(b)(6) (the “Motions”). For the reasons to follow,
the Moving Defendants' Motions are granted.
following facts are drawn from Plaintiff's Amended
Complaint and documents of which the Court can take judicial
notice, and are taken as true for the purpose of resolving
February 25, 2015, Defendant Caliber Home commenced a
mortgage foreclosure action in New York State Supreme Court
against Plaintiff, Rayna Holmes, and the New York State
Department of Taxation and Finance. (See Decl. of
Michael J. Sweeney, Esq., in Supp. of Mot. To Dismiss
(“Sweeney Decl.”) Ex. B (“Foreclosure
Compl.”) (Dkt. No. 46).) Caliber Home sought to foreclose
on real property located at 7 Brian Road in Wappingers Falls,
New York (the “Subject Property”). (Foreclosure
Compl. ¶ 5.) The complaint alleged that Plaintiff and
Rayna Holmes owed over $250, 000 on a note and mortgage
secured by the Subject Property. (Id. ¶ 15.)
The case was assigned to Justice Brands. (See
Sweeney Decl. Ex. C, at 1.) Defendant Klein of the law firm
Cohn & Roth represented Caliber Home in the state-court
proceedings. (See Id. at 3.)
moved to dismiss the case, but Justice Brands denied
Plaintiff's motion on May 21, 2015. (See Id. at
2.) Plaintiff next filed an application entitled
“Notice/Affidavit Nunc Pro Tunc, ” alleging that
the case had been settled because Plaintiff and Rayna Holmes
satisfied the outstanding debt. (Id. (internal
quotation marks omitted).) On June 25, 2015, Justice Brands
denied Plaintiff's application. (See id.)
the court denied Plaintiff's applications, Caliber Home
moved for an order of reference. (See Sweeney Decl.
Ex. E.) On September 1, 2015, Justice Brands granted Caliber
Home's motion and referred the matter to Defendant Baum.
(Id.) Plaintiff then filed a second “Affidavit
Nunc Pro Tunc, ” in which he argued that the case
should be dismissed because the outstanding debt had been
paid. (See Decl. of Joseph N. Froehlich, Esq., in
Supp. of Mot. To Dismiss (“Froehlich Decl.”) Ex.
C (Dkt. No. 43) (internal quotation marks omitted).) On
December 3, 2015, Justice Brands denied Plaintiff's
December 31, 2015, Baum issued a report, finding that there
was an outstanding balance on the note of $304, 253 and
recommending that the Subject Property be sold to satisfy the
debt. (See Sweeney Decl. Ex. F.) On March 1, 2016,
Justice Brands ratified Baum's report and entered a
Judgment of Foreclosure and Sale, directing that the Subject
Property be sold at a public auction. (See Sweeney
Decl. Ex. G.) The Subject Property was auctioned off on May
5, 2016. (See Sweeney Decl. Ex. H.)
alleges that Defendants joined with each other to
“assiduously and unlawfully AUCTION [P]laintiff's
private property with the intention to unlawfully enrich
themselves and each other.” (Am. Compl. ¶ 11 (Dkt.
No. 16) (emphasis omitted).) As a part of this scheme,
Defendants allegedly retained a tender payment Plaintiff made
to settle the state-court proceedings. Plaintiff alleges that
after Defendants accepted the tender, Defendants continued
the “malicious foreclosure process, ”
(id. ¶ 10), and committed mail and wire fraud
by mailing and emailing fraudulent documents in connection
with the foreclosure action, (id. ¶ 20).
Plaintiff clarifies, however, that he “does not intend
and neither is he implying in any manner or fashion that he
is asking this Court to review the conclusions of any other
STATE court found in NEW YORK STATE regarding the causes of
action herein.” (Id. ¶ 13.) Plaintiff
seeks a declaration that he is the rightful owner of the
property and $100 million in damages.
initiated this Action by filing a Complaint on May 5, 2016.
(Dkt. No. 1.) On May 12, 2016, the Court issued an Order To
Show Cause, directing Plaintiff to explain why the Action
should not be dismissed for lack of subject matter
jurisdiction or to file an amended pleading containing
allegations that established subject matter jurisdiction.
(Dkt. No. 4.) On June 8, 2016, Plaintiff filed the Amended
Complaint. (Dkt. No. 16.) Pursuant to a memo endorsement,
Caliber Home, Justice Brands, and the New York State Unified
Court System filed their Motions on September 1, 2016. (Dkt.
Nos. 36-44.) Pursuant to a Motion Scheduling Order, Klein and
Cohn & Roth filed their Motion on September 14, 2016.
(Dkt. Nos. 45-47.) Plaintiff filed a response to Caliber
Home's Motion on September 15, 2016. (Dkt. No. 51.)
Caliber Home filed a reply on October 14, 2016. (Dkt. No.
52.) The other Moving Defendants elected to forgo a reply, as
Plaintiff never responded to their respective Motions. (Dkt.
Nos. 53, 57.)
Defendants raise a series of arguments in support of their
Motions. All of the Moving Defendants argue that Plaintiff
has failed to state a claim, and that even if Plaintiff has
stated a claim, the claims are barred by the
Rooker-Feldman doctrine. Relatedly, Caliber Home
asserts that Plaintiff's claims are barred by collateral
estoppel, and Klein and Cohn & Roth argue that
Plaintiff's claims are barred by res judicata. Justice
Brands and the New York State Unified Court System (the
“State Defendants”) argue that Plaintiff's
claims also are barred by the Eleventh Amendment, and Justice
Brands additionally asserts that he is entitled to absolute
immunity because he was serving as a judge in the underlying
foreclosure proceeding. Finally, Caliber Home, Klein, and
Cohn & Roth argue that Plaintiff's claims must be
dismissed because Plaintiff did not properly effectuate
service of process. The Court will address each of these
arguments in turn.
Standard of Review
Rules 12(b)(1) & 12(b)(6)
standards of review for a motion to dismiss under Rule
12(b)(1) for lack of subject matter jurisdiction and under
12(b)(6) for failure to state a claim are
‘substantively identical.'” Gonzalez v.
Option One Mortg. Corp., No. 12-CV-1470, 2014 WL
2475893, at *2 (D. Conn. June 3, 2014) (quoting Lerner v.
Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003));
see also Neroni v. Coccoma, No. 13-CV-1340, 2014 WL
2532482, at *4 (N.D.N.Y. June 5, 2014) (same),
aff'd, 591 F. App'x 28 (2d Cir. 2015).
“In deciding both types of motions, the Court must
accept all factual allegations in the complaint as true, and
draw inferences from those allegations in the light most
favorable to the plaintiff.” Gonzalez, 2014 WL
2475893, at *2 (internal quotation marks omitted); see
also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012
WL 1999847, at *1 (D. Vt. June 4, 2012) (same). However,
“[o]n a Rule 12(b)(1) motion, . . . the party who
invokes the Court's jurisdiction bears the burden of
proof to demonstrate that subject matter jurisdiction exists,
whereas the movant bears the burden of proof on a motion to
dismiss under Rule 12(b)(6).” Gonzalez, 2014
WL 2475893, at *2; see also Sobel v. Prudenti, 25
F.Supp.3d 340, 352 (E.D.N.Y. 2014) (“In contrast to the
standard for a motion to dismiss for failure to state a claim
under Rule 12(b)(6), a plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” (internal quotation marks
omitted)). This allocation of the burden of proof is
“[t]he only substantive difference” between the
standards of review under these two rules. Smith v. St.
Luke's Roosevelt Hosp., No. 08-CV-4710, 2009 WL
2447754, at *9 n.10 (S.D.N.Y. Aug. 11, 2009), adopted
by 2009 WL 2878093 (S.D.N.Y. Sept. 2, 2009).
federal court has subject matter jurisdiction over a cause of
action only when it has authority to adjudicate the cause
pressed in the complaint.” Bryant v. Steele,
25 F.Supp.3d 233, 241 (E.D.N.Y. 2014) (internal quotation
marks omitted). “Determining the existence of subject
matter jurisdiction is a threshold inquiry[, ] and a claim is
properly dismissed for lack of subject matter jurisdiction
under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d
167, 170 (2d Cir. 2008) (internal quotation marks omitted),
aff'd, 561 U.S. 247 (2010). While a district
court resolving a motion to dismiss under Rule 12(b)(1)
“must take all uncontroverted facts in the complaint .
. . as true, and draw all reasonable inferences in favor of
the party asserting jurisdiction, ” “where
jurisdictional facts are placed in dispute, the court has the
power and obligation to decide issues of fact by reference to
evidence outside the pleadings, such as affidavits, ”
in which case “the party asserting subject matter
jurisdiction has the burden of proving by a preponderance of
the evidence that it exists.” Tandon v.
Captain's Cove Marina of Bridgeport, Inc., 752 F.3d
239, 243 (2d Cir. 2014) (alteration and internal quotation
marks omitted); see also Ray Legal Consulting Grp. v.
Gray, 37 F.Supp.3d 689, 696 (S.D.N.Y. 2014)
(“[W]here subject matter jurisdiction is contested a
district court is permitted to consider evidence outside the
pleadings, such as affidavits and exhibits.”).
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his [or her] entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation, alteration, and internal
quotation marks omitted). Indeed, Rule 8 of the Federal Rules
of Civil Procedure “demands more than an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotation marks omitted). “Nor does a
complaint suffice if it tenders naked assertions devoid of
further factual enhancement.” Id. (alteration
and internal quotation marks omitted). Instead, a
complaint's “[f]actual allegations must be enough
to raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. Although
“once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint, ” id. at 563,
and a plaintiff must allege “only enough facts to state
a claim to relief that is plausible on its face, ”
id. at 570, if a plaintiff has not “nudged
[his or her] claims across the line from conceivable to
plausible, the complaint must be dismissed, ”
id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts
do not permit the court to infer more than the mere