Lee v. Driscoll

          MEMORANDUM OF DECISION

          KARI A. DOOLEY, UNITED STATES DISTRICT JUDGE

         Through this action plaintiff Huey Min Lee (“Lee”) seeks to challenge the $700 municipal blight fine imposed on her rental property in 2015 as well as the process by which that fine was imposed. The defendants are Michael E. Driscoll, Kimberly Carlson McGee, Brown Jacobson PC, Mark E. Block, Block Janney & Pascal LLC, George Gardner, the City of Norwich, and the New London Superior Court (collectively, the “Defendants”). Each of the Defendants were involved in some way in the imposition and adjudication of that fine and the associated judgment and judgment lien. All Defendants have moved to dismiss this action pursuant to Rule 12 of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. The Defendants assert additional, alternative bases for dismissal as well. Because many of the issues raised in the various motions overlap significantly, the Court issues a single Memorandum of Decision.

         For the reasons set forth in this decision, the Motion to Dismiss filed by Driscoll, McGee, and Brown Jacobson (ECF No. 69) is GRANTED. The Motions to Dismiss filed by Block (ECF No. 60) and Block Janney (ECF No. 64) are GRANTED. The Motion to Dismiss filed by the New London Superior Court (ECF No. 68) is GRANTED. The Motion to Dismiss filed by the City of Norwich and Gardner (ECF No. 52) is GRANTED in part and DENIED in part.

         I. Background

         A. Factual Allegations ^[1]

         Lee is the owner of a family residence in Norwich, Connecticut (the “Property”). (Compl. at ¶ 25, ECF No. 1.) Lee leased the Property to a third party beginning on March 1, 2015. (Id.) In September 2015, George Gardner, a building code enforcement officer for the City of Norwich (“Norwich”), received a complaint from Lee's tenants concerning the condition of the Property. (Id. at ¶ 26.) In response to the complaint, Gardner conducted two inspections of the Property and cited fifteen violations of the Norwich Property Maintenance Code (the “Code”). (Id.) Gardner issued notices for the violations on September 9, 2015 and September 24, 2015. (Id. at ¶ 27.) On November 2, 2015, Gardner issued three citations, which listed a total of fourteen violations of the Code and imposed a total fine of $700. (Id. at ¶ 29.) On November 9, 2015, Lee requested a hearing concerning the citations, challenging the legal and factual basis on which they were issued. (Id. at ¶ 33.)

         On December 11, 2015, a hearing was held before citation hearing officer Mark E. Block. (Id. at ¶ 34.) Lee represented to Block that her contractor had gone to the Property with the violation list for repair in November but was refused access to the Property by her tenants. (Id. at ¶ 37.) Block offered Lee an extension to remediate the Code violations. (Id.) But then, on December 15, 2015, Block issued a decision finding Lee liable for the violations listed in the citations issued by Gardner and entered a $700 assessment. (Id. at ¶¶ 39-40.) Lee received the notice of decision on December 16, 2015. (Id. at ¶ 39)

         On January 25, 2016, Block filed the notice of assessment with the New London Superior Court (“Superior Court”), pursuant to Conn. Gen. Stat. § 7-152c(f), (the “Blight Action”) which resulted in a firm appearance being entered in the matter for Block's firm, Block Janney & Pascal LLC (“Block Janney”). City of Norwich v. Lee, No. KNL-CV-16-6025999-S, Entry No. 100.31 (Conn. Super. Ct. Jan. 25, 2016) [hereinafter Lee I]; see also (Compl. at ¶ 44). Block further requested a judgment on the violations on behalf of Norwich so that Norwich could enforce the $700 assessment. Id. at Entry No. 100.30. On January 28, 2016, judgment entered in favor of Norwich in the amount of $700 and court costs of $8 (the “Blight Judgment”). Lee I, Entry No. 101.00; see also (Compl. at ¶ 44). On February 17, 2016, Norwich, represented by Brown Jacobson PC (“Brown Jacobson”), recorded a judgment lien against the Property for the sum of $700 in damages and $8 in costs. (Compl. at ¶ 55; see also Compl., Ex. A at 3, ECF No. 1-2.) That same day, Kimberly Carlson McGee, an attorney with Brown Jacobson, sent Lee a copy of the judgment lien. (Compl., Ex. A at 2.)

         On February 19, 2016, Lee instituted an action in the Superior Court against Norwich, the Norwich Department of Planning and Development, Gardner, and Block in which she sought to appeal Block's decision and assessment (the “Blight Appeal”). Lee v. City of Norwich, No. KNL-CV-16-5015046-S, Entry No. 100.30 (Conn. Super. Ct. Feb. 19, 2016) [hereinafter Lee II]. On March 16, 2016, the defendants moved to dismiss the action, arguing that it was untimely under Connecticut Practice Book § 23-51 and Connecticut General Statutes § 7-152c. Id., Entry No. 101.00. On April 15, 2016, Lee sought leave to amend her complaint. Id., Entry No. 101.01. On August 30, 2016, the court granted the defendants' motion to dismiss and denied Lee's request to amend. Id., Entry No. 102.00. With respect to the motion to dismiss, the court agreed with the defendants that Lee's appeal was untimely and, as a result, the court lacked subject matter jurisdiction. Id. The court further concluded that Lee's request to amend was moot because of the court's lack of subject matter jurisdiction. Id. Thereafter, the court entered a judgment of dismissal. Id., Entry No. 103.00. Lee did not appeal this decision.

         B. Procedural History

         On August 31, 2018, Lee commenced this twelve-count action against the Defendants, in which she challenges the Defendants' authority to institute and prosecute the Blight Action as well as the propriety and legality of the Defendants conduct when doing so. For relief, Lee seeks declarations that the Defendants acted unconstitutionally, that they are liable for each of the stated causes of action, and that the Blight Judgement is null and void.

         The Complaint is not a model of clarity, and it is difficult to determine both the nature of the claims brought and the defendants at which such claims are directed. Construing this pro se complaint liberally, the Court determines that the chart of the claims and defendants set forth below accurately summarizes the Complaint.^[2] Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“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.” [citations omitted; internal quotation marks omitted]).

Count	Cause of Action	Defendants Named
1	Fraud Upon the Court	All defendants except the Superior Court
2	42 U.S.C. § 1983 (deprivation of due process)	Gardner
3	42 U.S.C. § 1983 (deprivation of due process)	All defendants
4	42 U.S.C. § 1985 (conspiracy to interfere with civil rights)	All defendants
5	18 U.S.C. § 1341 (mail fraud)	All defendants except the Superior Court
6	18 U.S.C. § 1343 (wire fraud)	All defendants except the Superior Court
7	18 U.S.C. § 1349 (conspiracy to defraud)	All defendants except the Superior Court
8	Fed. R. Civ. P. 60(b) (collateral attack on Blight Judgment based on fraud)	Norwich[3]
9	Usurpation of Public Office	Block, Block Janney, McGee, and Brown Jacobson
10	42 U.S.C. § 1986 (action for neglect to prevent)[4]	Norwich
11	18 U.S.C. § 1621 (perjury under oath of office)	Driscoll, Block, McGee, and Gardner
12	18 U.S.C. § 1346 (honest services fraud)[5]	Norwich and the Superior Court

         Count One, fraud upon the court, is based on the named defendants alleged ultra vires conduct and submission of false statements and forged documents in order to obtain the Blight Judgment. Relatedly, in Counts Five, Six, Seven, Eleven and Twelve, Lee asserts claims under various criminal statutes for fraud and perjury. Much like Count One, these counts accuse the named defendants of engaging in illegal and unlawful conduct to obtain the Blight Judgment. Count Eight further asserts a “collateral attack” on the validity of the Blight Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure based on the fraud perpetrated by Norwich through the Defendants to obtain the Blight Judgment. (Compl. at ¶ 107 (“Plaintiff brings this independent action to attack the void judgment in [the Blight Action] . . . pursuant to Federal Rules of Civil Procedure 60. . . .”).)

         In Counts Two, Three, Four, Nine and Ten, Lee asserts a variety of civil rights claims based on the events surrounding and leading up to the Blight Action. Count Two asserts a claim against Gardner under 42 U.S.C. § 1983 based on his alleged ultra vires inspection of the Property and issuance of notices and citations, in violation of Lee's substantive due process and constitutional property rights. Count Three asserts a procedural due process and equal protection claim under Section 1983. Count Four asserts a claim under 42 U.S.C. § 1985 based on the Defendants alleged conspiracy to deprive Lee of her due process and constitutional property rights. Count Nine accuses the named defendants of usurping the duties and authorities of Norwich's corporation counsel (Driscoll) when prosecuting the Blight Action, thereby depriving Lee of her civil rights. Relatedly, Count Ten accuses Norwich of illegally retaining McGee, Brown Jacobson, Block, and Block Janney as counsel and, thereby, enabling these and other defendants to perpetuate their fraudulent scheme to deprive “its citizen's civil right to private property and to due process of law.” (Compl. at ¶ 128.)

         II. Standard of Review

          To survive a motion to dismiss filed pursuant to Rule 12(b)(6), “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 (2009) (quoting 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.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). Legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, ” are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Nevertheless, when reviewing a motion to dismiss, the court must accept well-pleaded factual allegations as true and draw “all reasonable inferences in the non-movant's favor.” Interworks Sys. Inc. v. Merch. Fin. Corp., 604 F.3d 692, 699 (2d Cir. 2010).

         “Because a Rule 12(b)(6) motion challenges the complaint as presented by the plaintiff, taking no account of its basis in evidence, a court adjudicating such a motion may review only a narrow universe of materials. Generally, we do not look beyond facts stated on the face of the complaint, . . . documents appended to the complaint or incorporated in the complaint by reference, and . . . matters of which judicial notice may be taken.” Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016) (citations omitted, internal quotation marks omitted).

         The appropriate analysis for a facial challenge to subject matter jurisdiction, like the one raised by the Defendants, is similar to that required under Rule 12(b)(6). “When the Rule 12(b)(1) motion is facial, i.e., based solely on the allegations of the complaint or the complaint and exhibits attached to it . . ., the plaintiff has no evidentiary burden.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016). The task of the district court is to determine whether, after accepting as true all material factual allegations of the complaint and drawing all reasonable inferences in favor of the plaintiff, the alleged facts affirmatively and plausibly suggest that the court has subject matter jurisdiction. Id. at 56-57. “A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

         III. The Motion to Dismiss by the Superior Court (ECF No. 68)

         The Superior Court moves to dismiss all of Lee's claims against it for lack of subject matter jurisdiction pursuant to the Rooker-Feldman doctrine^[6] and the Eleventh Amendment to the United States Constitution. As noted above, the Superior Court is named in Count Three (Section 1983; due process); Count Four (Section 1985; conspiracy); and Count Twelve (Section 1346; honest services fraud). Alternatively, the Superior Court moves to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim and Rule 12(b)(5) for insufficient service of process. Because the Court agrees that it lacks subject matter jurisdiction over Lee's claims against the Superior Court, it need not take up the Superior Court's alternative arguments for dismissal.

         A. Rooker-Feldman Doctrine

         Under the Rooker-Feldman doctrine, federal courts lack subject matter jurisdiction over claims that, in substance, challenge state court judgments. Sung Cho v. City of New York, 910 F.3d 639, 644 (2d Cir. 2018). “[I]n order for a court to be deprived of jurisdiction under the Rooker-Feldman doctrine, four requirements must be met: (1) the federal-court plaintiff must have lost in state court; (2) the plaintiff must complain of injuries caused by a state-court judgment; (3) the plaintiff must invite district court review and rejection of that judgment; and (4) the state-court judgment must have been rendered before the district court proceedings commenced.” Id. at 645; see also Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “The first and fourth of these requirements may be loosely termed procedural; the second and third may be termed substantive.” McKithen v. Brown, 481 F.3d 89, 97 (2d Cir. 2007) (citation omitted).

         Here, Lee “lost in state court” when she received an adverse decision from Block concerning her challenge to the blight citations and had that decision reduced to a judgment of the Superior Court and asserted as a judgment lien.^[7] See Mennella v. Carey, 253 Fed.Appx. 125, 127 (2d Cir. 2007) (summary order) (applying Rooker-Feldman based on adverse decision during disciplinary hearing and administrative appeal); Pers. v. White, No. 09-cv-03920 (JS)(ARL), 2010 WL 2723210, at *4 (E.D.N.Y. July 2, 2010) (applying Rooker-Feldman based on adverse decision before the Workers' Compensation Board and New York Appellate Decision). Further, the Blight Judgment entered in the state court prior to the commencement of this action. Lee I, Entry No. 101.00 (Conn. Super. Ct. Jan. 28, 2016). As such, the first and fourth requirements of Rooker-Feldman are plainly met.^[8]

         Turning to the second Rooker-Feldman requirement, that the plaintiff must complain of injuries caused by a state-court judgment, this requirement is satisfied only as to Counts Three and Four. In these counts, Lee complains of a single injury - the issuance of the judgment lien resulting from the Blight Judgment. In addition, the third Rooker-Feldman requirement is also met as to these counts because Lee invites the Court to review and reject the propriety of the Blight Action and resulting judgment. Indeed, the only affirmative relief Lee seeks is an order declaring the Blight Judgement “null and void.” (Compl., Prayer for Relief). Accordingly, Rooker-Feldman bars Counts Three and Four. See, e.g., Worthy-Pugh v. Deustche Bank Nat'l Tr. Co., No. 3:14- cv-01620 (AWT), 2016 WL 2944535, at *4 (D. Conn. Jan. 29, 2016) (dismissing fraud claims where the complained of injury was a state-court judgment of strict foreclosure and plaintiff was inviting the court to review the propriety of that judgment), aff'd 664 Fed.Appx. 20 (2d Cir.) (summary order). Counts Three and Four are dismissed with prejudice for lack of subject matter jurisdiction.

         Unlike Counts Three and Four, Count Twelve does not challenge an injury caused by a state court judgment, nor does it overtly seek review and rejection of the Blight Judgment. Instead, Lee challenges the criminally fraudulent conduct that resulted in the Blight Judgement. The fact that the Blight Judgment “ratified, acquiesced in, or left unpunished” the Superior Court's alleged criminal conduct does not provide a basis for applying Rooker-Feldman. Hoblock v. Albany Cty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir. 2005); see also Sykes v. Mel S. Harris & Assocs. LLC, 780 F.3d 70, 94-95 (2d Cir. 2015) ...