United States District Court, S.D. New York
S. ROMAN, UNITED STATES DISTRICT JUDGE.
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.
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.
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 Nicholsremoved 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.)
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.)
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.
on a Motion to Dismiss for Lack of Personal
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
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).
“[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).
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
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).
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).
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.
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.
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.
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.)
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.)
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.)
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.)
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 ...