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Rosado v. Bondi

United States District Court, S.D. New York

October 27, 2017




         Pro se Plaintiff Randal Rosado commenced this action on September 2, 2016, alleging multiple civil rights violations by various parties from New York and Florida. This Court liberally construed Plaintiffs claims as arising under 42 U.S.C. § 1983. Order of Service at 5, Rosado v. Bondi, 7:16-CV-6916 (NSR) (S.D.N.Y. Sept. 21, 2016). Before the Court are three motions to dismiss on behalf of Defendants Mike Scott, Linda Doggett, Pamela Jo Bondi, Stephen B. Russell, and Michael J. Brown. For the reasons set forth below, all three motions to dismiss for lack of personal jurisdiction are GRANTED without prejudice.

         Facts The following allegations are taken from the complaint. Plaintiff faces several criminal charges in the State of Florida. In connection with those proceedings, Defendant Mike Scott allegedly issued a warrant for Plaintiffs arrest. (Compl. at 8.) On June 28, 2016, police officers and federal agents executed the search warrant on Plaintiffs home located in Goshen, New York at approximately 6:10am. (Id.) Members of the Lee County FBI awakened Plaintiff and his wife as they entered the residence and announced their presence. (Id.)

         Without explaining the cause of the arrest, the agents quickly handcuffed Plaintiff, asked him to change, and turned him over to Defendant Keith Wilkerson of the Village of Goshen Police Department (VOGPD). (Id. at 8-9.) Defendant Wilkerson then transported Plaintiff to the VOGPD station. (Id. at 9.) At the police station, a man by the name of Robert Nichols[1]removed Plaintiff's handcuffs and directed Plaintiff into Defendant Sergeant Ryan W. Rich's office. In the presence of an unidentified employee of the FBI, Nichols told Plaintiff that he wished to speak with him and read Plaintiff his Miranda rights. (Id.) Nichols then gave Plaintiff a waiver form prior to further questioning, which Plaintiff refused to sign. (Id.) Following Plaintiff's refusal to sign, Nichols informed Plaintiff that he was “accused of crimes involving certain individuals and entities known to him who had contacted him for consultation in the past.” (Id.) Nichols then left the room, noting that he looked forward to speaking with Plaintiff in Florida. (Id. at 9-10.)

         Wilkerson reapplied the handcuffs and took Plaintiff's photograph, fingerprints, and wrote the arrest report. (Id. at 10.) Defendant Rich assisted Defendant Wilkerson in processing Plaintiff. Defendant Wilkerson and Defendant Rich took Plaintiff to the Town Hall for his arraignment and then to the Orange County Jail. (Id.)

         Two days later, on June 30, 2016, Plaintiff appeared before Orange County Supreme Court Judge Nicholas DeRosa for an extradition hearing. Judge DeRosa informed Plaintiff of the charges against him, and Plaintiff refused extradition to Florida. (Id. at 10-11.) Plaintiff again appeared before Judge DeRosa on July 28, 2016 for his second extradition hearing. Plaintiff's attorney attempted to convince Plaintiff to waive extradition, but Plaintiff refused. Plaintiff then notified his attorney that he had filed a writ of habeas corpus, alleging that he was not in Lee County, or likely not even in Florida, at the time of the alleged underlying crime. (Id.) Plaintiff was eventually extradited to Florida, where he is currently being held. The moving parties move to dismiss the complaint.

         Standard on a Motion to Dismiss for Lack of Personal Jurisdiction

         “The lawful exercise of personal jurisdiction by a federal court requires satisfaction of three primary requirements.” Jonas v. Estate of Leven, 116 F.Supp.3d 314, 323-24 (S.D.N.Y. 2015) (citing Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012)). First, “the plaintiff's service of process upon the defendant must have been procedurally proper”; second, “there must be a statutory basis for personal jurisdiction that renders such service of process effective”; and third, “the exercise of personal jurisdiction must comport with constitutional due process principles.” Licci ex re. Licci, 673 F.3d at 59-60.

         The plaintiff bears the burden of establishing jurisdiction and must make a prima facie showing that jurisdiction exists. See Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34- 35 (2d Cir. 2010). “Such a showing entails making legally sufficient allegations of jurisdiction, including an averment of facts that, if credited[, ] would suffice to establish jurisdiction over the defendant.” Id. at 35 (internal quotation marks omitted). The plaintiff must also “establish the court's jurisdiction with respect to each claim asserted.” Sunward Elecs., Inc. v. McDonald, 362 F.3d 17, 24 (2d Cir. 2004).

         Further, “[p]rior to discovery, a plaintiff challenged by a jurisdiction testing motion may defeat the motion by pleading in good faith, see Fed. R. Civ. P. 11, legally sufficient allegations of jurisdiction.” Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990); accord Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996).

         In deciding a Federal Rules of Civil Procedure 12(b)(2) motion, the district court may consider materials outside the pleadings, including affidavits and other written materials. MacDermid, Inc. v. Deiter, 702 F.3d 725, 727 (2d Cir. 2012); Bensusan Rest. Corp. v. King, 937 F.Supp. 295, 298 (S.D.N.Y. 1996), aff'd, 126 F.3d 25 (2d Cir. 1997). The court assumes the verity of the allegations “to the extent they are uncontroverted by the defendant's affidavits.” MacDermid, Inc., 702 F.3d at 727 (internal quotation marks omitted). Nonetheless, all factual doubts or disputes are to be resolved in the plaintiff's favor. See, e.g., A.I. Trade Fin., Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).

         A district court must have a statutory basis for exercising personal jurisdiction. See Grand River Enterprises Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir.2005). This a federal question case where a defendant resides outside the forum state and the federal statute, 42 U.S.C. § 1983, does not specifically provide for national service of process. Barclay v. Hughes, 462 F.Supp.2d 314, 315, n. 3 (D. Conn. 2006); see PDK Labs., Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir.1997) (noting that the Court must first look to the federal statute to see whether it provides for national service of process). Thus, we apply “the forum state's personal jurisdiction rules” and therefore look to New York State long-arm statute. Marvel Characters, Inc. v. Kirby, 726 F.3d 119, 128 (2d Cir. 2013).

         Pursuant to N.Y. C.P.L.R. § 301, a defendant is subject to personal jurisdiction if he is domiciled in New York, served with process in New York, or continuously and systematically does business in New York. See Landoil Res. Corp. v. Alexander & Alexander Servs., Inc., 77 N.Y.2d 28, 33, 563 N.Y.S.2d 739, 565 N.E.2d 488 (1990); Pichardo v. Zayas, 122 A.D.3d 699, 702, 996 N.Y.S.2d 176, 180 (2d Dept. 2014); see also Wells Fargo Bank Minnesota, N.A. v. ComputerTraining.Com, Inc., No. 04-CV-0982, 2004 WL 1555110, at *2-3 (S.D.N.Y. July 9, 2004). “Although the ‘doing business' test is most often used to find jurisdiction over a corporate defendant, this test can be applied to a nonresident individual.” Patel v. Patel, 497 F.Supp.2d 419, 425 (E.D.N.Y. 2007). In addition, a defendant may be subject to New York's long-arm statute, N.Y. C.P.L.R. § 302, if he engages in the following acts either in person or through an agent and such acts relate to an asserted claim: (1) transacts any business within the state or contracts anywhere to supply goods or services in the state; (2) commits a tortious act within the state; (3) commits a tortious act outside the state but injures a person or property in the state; or (4) owns, uses, or possesses any real property in the state. N.Y. C.P.L.R. § 302(a).

         Although the “plaintiff bears the ultimate burden of establishing jurisdiction over the defendant by a preponderance of evidence, ” Waldman v. Palestine Liberation Org., 835 F.3d 317, 334 (2d Cir. 2016) (quoting Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996)), the Court will “construe the pleadings and any supporting materials in the light most favorable to the plaintiff[ ]” when considering whether such a showing has been made. Licci, 732 F.3d at 167 (citing Chloe v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158, 163 (2d Cir. 2010)). Further, “[w]here, as here, a plaintiff proceeds pro se, the court must ‘construe [] [his] [complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].' ” Askew v. Lindsey, No. 15-CV-7496 (KMK), 2016 WL 499261, at *2 (S.D.N.Y. Sept. 16, 2016) (citing Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013)). Yet, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Id. (citing Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y. 2013)).

         Personal Jurisdiction

         Plaintiff alleges that the moving Defendants violated his constitutional rights as a result of the executed search warrant in New York. Plaintiff also alleges that the moving Defendants violated various federal statutes in their individual and official capacities.

         Plaintiff accuses Defendant Mike Scott, the Sheriff of Lee County, Florida, of issuing an allegedly baseless Florida warrant that culminated in his arrest and detention in New York. (Compl. at 6, 8.) Plaintiff alleges that Defendant Mike Scott: (1) violated Title 18 U.S.C. § 241 and § 242 by conspiring against the Plaintiff's rights in issuing the arrest warrant (Id. at 6.); (2) created a warrant using false and fabricated evidence in order to force jurisdiction by labeling Plaintiff as a fugitive of Florida in order to enslave him (Id. at 35); and (3) denied Plaintiff's right to a reasonable defense. (Id. at 36.)

         Plaintiff accuses Defendant Linda Doggett, Clerk and Comptroller for Lee County, Florida, of: (1) violating her oath of office, 18 U.S.C. § 3571; (2) conspiring against the Plaintiff and depriving him of his rights under color of law; and (3) filing a civil case against Plaintiff in Leon County, Florida, without any lawful justification. (Compl. at 4.)

         Plaintiff alleges that Defendant Florida Attorney General Pamela Jo Bondi made false statements and fabricated evidence in Lee County, Florida, and filed an unmeritorious civil suit against him in Florida. In doing so, Plaintiff accuses her of: (1) violating 18 U.S.C. § 241 and § 242 by conspiring against him and violating her state oath of office; and (2) depriving him of his constitutional rights. (Compl. at 3, 18.)

         Plaintiff accuses State Attorney Stephen B. Russell of: (1) conspiring with a non-party to violate and deprive him of his rights by unlawfully seizing property from his residence in violation of 18 U.S.C. § 241, § 242, and § 2112; (2) violating his Fourth Amendment rights and, as a result, 18 U.S.C. § 3571; (3) police misconduct in violation of 42 U.S.C. § 14141; and (4) defamation pursuant to 28 U.S.C. § 4101. (Compl. at 3-4, 9, 10.) Plaintiff also alleges that Russell stole numerous items in a search and seizure executed by Defendant Russell at Plaintiff's residence in New York and at a storage unit he rents in Vero Beach, Florida. (Compl. at 14, 19, 20, 34.)

         Finally, Plaintiff accuses Assistant State Attorney Michael J. Brown of blatantly lying, conspiring, and making false written statements against the Plaintiff concerning real estate in Palm Beach and Collier Counties, Florida. (Compl. at 3, 17.) Plaintiff accuses Defendant Brown of: (1) violating 18 U.S.C. § 241, § 242 by falsely accusing Plaintiff of forging deeds in Florida; (2) violating 28 U.S.C. § 4101 for defamation of character through actions taken in Florida (Compl. at 3, 17.); (3) violating Plaintiff's Fourth Amendment rights by searching his property in Vero Beach, Florida (Compl. at 34.); and (4) violating his oath of office under 18 U.S.C. § 3571. (Compl. at 3.)

         Defendants seek to dismiss on several grounds pursuant to Rule 12(b), or in the alternative, transfer the case to the Middle District of Florida. The Court opts to consider the jurisdictional questions first, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999), and finds that they dispose of each of the pending motions, and therefore does not reach the issue of whether the complaint sets forth valid claims for relief pursuant to Rule 12(b)(6). See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 425 (2007) (stating that if “a ...

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