DECISION and ORDER Currently pending before the Court, in this foreclosure action filed by John M. LaSpisa (“Plaintiff”) against the CitiFinancial Company (“Defendant CitiFinancial”) and Carrington Mortgage Services (“Defendant Carrington”), is Defendant Carrington’s motion to dismiss Plaintiff’s Amended Complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) and/or for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). (Dkt. Nos. 13, 19, 20.)1 For the reasons set forth below, Defendant Carrington’s motion to dismiss is granted, Plaintiff’s claims against Defendant Carrington are dismissed, and Plaintiff’s remaining claims against Defendant CitiFinancial are sua sponte dismissed for frivolousness and lack of subject-matter jurisdiction. I. RELEVANT BACKGROUND A. Relevant Procedural History Before filing his original Complaint in this action, Plaintiff filed two actions appearing to arise from the transactions or occurrences giving rise to this action, and both of those actions were dismissed with prejudice. See Lapisa v. CitiFinancial Co., 17-CV-0556, Judgment (N.D.N.Y. filed Oct. 11, 2017); Lapisa v. Carrington Mortg. Servs., 18-CV-0211, Judgment (N.D.N.Y. filed Aug. 22, 2018). On February 19, 2019, Plaintiff filed his original Complaint in this action. (Dkt. No. 1.) On September 5, 2019, Plaintiff served his Complaint on Defendant Carrington. (Dkt. No. 12.) On October 21, 2019, Defendant Carrington filed and served its motion to dismiss. (Dkt. No. 13.) On April 13, 2020 (without Defendant Carrington’s written consent), Plaintiff filed an Amended Complaint. (Dkt. No. 17.) On April 15, 2020, the Court entered a Text Order accepting Plaintiff’s Amended Complaint for filing. (Dkt. No. 18.) Later that day, the Court entered another Text Order, which granted Defendant Carrington’s letter-motion requesting that the Court consider Defendant Carrington’s pending motion to dismiss as responsive to Plaintiff’s Amended Complaint. (Dkt. No. 19.) B. Summary of Plaintiff’s Amended Complaint Generally, liberally construed, Plaintiff’s Amended Complaint alleges that, between 2008 and the date of the Amended Complaint, Defendants injured Plaintiff by lacking standing to foreclose on his mortgage, separating his note from his mortgage, and failing to give Plaintiff the requisite notices under the note and mortgage. (See generally Dkt. No. 17 [Plf.'s Am. Compl.].) Based on these factual allegations, Plaintiff’s Amended Complaint asserts claims of breach of contract, negligence and fraud. (Id.) Familiarity with the factual allegations supporting these claims in Plaintiff’s Amended Complaint is assumed in this Decision and Order, which is intended primarily for the review of the parties. (Id.) C. Parties’ Briefing on Defendant Carrington’s Motion to Dismiss Generally, in support of its motion to dismiss, Defendant Carrington asserts the following ten arguments: (1) the doctrine of res judicata bars Plaintiff’s claims because he previously asserted the exact same claims against Defendants in actions that were subsequently dismissed, and New York courts have repeatedly found that a judgment of foreclosure and sale is a final decision for purposes of res judicata; (2) the Court does not possess subject-matter jurisdiction over this action because the Rooker-Feldman doctrine bars a losing party harmed by a state court judgment from inviting federal court review of a previous judgment; (3) Plaintiff fails to plead facts plausibly suggesting that Defendant Carrington was involved in either the foreclosure action or the mortgage, or that it noticed sale of the property; (4) Plaintiff’s claims are not ripe because they are contingent on a future event (i.e., Wilmington Savings conducting a foreclosure sale); (5) Plaintiff fails to state a claim to quiet title because he fails to allege facts plausibly suggesting that he has actual or constructive possession of the property and that the mortgage is invalid; (6) Plaintiff fails to state a claim for fraud because he fails to allege with sufficient particularity facts plausibly suggesting a fraudulent statement made by Defendant Carrington; (7) Plaintiff fails to state a negligence claim because he does not allege facts plausibly suggesting that Defendant Carrington owed him a duty of care, that Defendant Carrington breached its duty, or that he was damaged by Defendant Carrington’s breach of duty; (8) Plaintiff fails to state a constitutional claim against Defendant Carrington because he has failed to allege facts plausibly suggesting how any of Defendant Carrington’s actions constituted state action; (9) Plaintiff is not entitled to a preliminary injunction as a matter of law because the fact that he has not stated a claim (and/or his claims are barred) means he cannot establish a likelihood of success on the merits; and (10) an extension of time for Defendant Carrington to respond to Plaintiff’s Complaint is warranted under Fed. R. Civ. P. 6(b)(1)(B) because Defendant Carrington was under the belief that service in this action was ineffective and subject to dismissal, its delay was minimal, and Plaintiff cannot show any prejudice from that delay. (See generally Dkt. No. 19; Dkt. No. 13-25 [Def.'s Memo. of Law].) Other than by filing an Amended Complaint, Plaintiff has not responded to Defendant Carrington’s motion despite having been repeatedly advised of the deadline for filing such a response, the duty to notify the Court if he would not be filing a response, and the potential consequence of failing to oppose a movant’s legal arguments. (Text Notice filed Oct. 22, 2019; Dkt. No. 15; Dkt. No. 3, at 2 [notifying Plaintiff of potential consequence of failing to oppose a movant's legal arguments, and attaching courtesy copy of Local Rule 7.1[b][3] and page 29 of the District’s Pro Se Handbook].) II. RELEVANT LEGAL STANDARDS A. Legal Standard Governing a Motion to Dismiss for Failure to State a Claim It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211 nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J.) (adopting Report-Recommendation on de novo review). Because such dismissals are often based on the first ground, some elaboration regarding that ground is appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2). On the one hand, the Supreme Court has long characterized the “short and plain” pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d at 212 n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at 212 n.17 (citing Supreme Court cases) (emphasis added). The Supreme Court has explained that such fair notice has the important purpose of “enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision on the merits” by the court. Jackson, 549 F. Supp. 2d at 212 n.18 (citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal” notice pleading standard “has its limits.” 2 Moore’s Federal Practice §12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp. 2d at 213 n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009). Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. §1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “ a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true. Id. As for the nature of what is “plausible,” the Supreme Court explained that “[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, 129 S. Ct. at 1949. “[D]etermining whether a complaint states a plausible claim for relief…[is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense…. [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not show[n] — that the pleader is entitled to relief.” Iqbal, 129 S. Ct. at 1950 (internal quotation marks and citations omitted). However, while the plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully,” id., it “does not impose a probability requirement.” Twombly, 550 U.S. at 556. Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citations omitted). This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.2 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.3 Stated more simply, when a plaintiff is proceeding pro se, “all normal rules of pleading are not absolutely suspended.” Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted]. Moreover, although a district court may not sua sponte dismiss a pro se plaintiff’s complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6) where (as here) that pro se plaintiff is neither a prisoner nor proceeding in forma pauperis, a district court may always sua sponte dismiss a pro se plaintiff’s complaint based on frivolousness. See, e.g., Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir.2000) (recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee). Turning to the subject of what documents are considered when a dismissal for failure to state a claim is contemplated, generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are “integral” to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.4 Finally, it is worth noting that the pleading defects resulting from the doctrine of res judicata arises under Fed. R. Civ. P. 12(b)(6), not Fed. R. Civ. P. 12(b)(1). See Thompson v. Cnty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994) (“[T]he doctrine of res judicata or issue preclusion in no way implicates jurisdiction. Res judicata challenges may properly be raised via a motion to dismiss for failure to state a claim under Rule 12(b)(6).”); Calemine v. Gesell, 06-CV-4736, 2007 WL 2973708, at *1 n.1 (E.D.N.Y. Sept. 28, 2007) (“Though Defendants move pursuant to Rule 12(b)(1) and 12(b)(6) for failure to state a claim, the grounds for their motion, res judicata and statute of limitations, are both properly considered under Rule 12(b)(6).”). B. Legal Standard Governing a Motion to Dismiss for Lack of Subject-Matter Jurisdiction “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). Generally, a claim may be properly dismissed for lack of subject-matter jurisdiction where a district court lacks constitutional or statutory authority to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A district court may look to evidence outside of the pleadings when resolving a motion to dismiss for lack of subject-matter jurisdiction. Makarova, 201 F.3d at 113. The plaintiff bears the burden of proving subject-matter jurisdiction by a preponderance of the evidence. Id. (citing Malik v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996]). When a court evaluates a motion to dismiss for lack of subject-matter jurisdiction, all ambiguities must be resovled and inferences drawn in favor of the plaintiff. Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Makarova, 201 F.3d at 113). Finally, it is important to remember that the Court can, under any circumstances, sua sponte dismiss a claim for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss that action.”). III. ANALYSIS A. Analysis of Defendant Carrington’s Motion to Dismiss The Court begins its analysis of Defendant Carrington’s motion to dismiss by observing that, in this District, when a non-movant has willfully failed to respond to a movant’s properly filed and facially meritorious memorandum of law (submitted in support of its motion to dismiss), the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3).5 Stated another way, where a movant has properly filed a memorandum of law (in support of a properly filed motion to dismiss), and the non-movant has failed to respond to that memorandum of law, the only remaining issue is whether the legal arguments advanced in the movant’s memorandum of law are facially meritorious.6 A movant’s burden in making legal arguments that are facially meritorious has appropriately been characterized as “modest.”7 Here, the Court finds that Defendant Carrington has met this modest burden, for the reasons stated in its memorandum of law. (Dkt. No. 13-25.) In any event, even if the Court were to subject Defendant Carrington’s motion to the level of scrutiny appropriate for contested motions, the Court would find that Defendant Carrington’s motion is supported by a showing of cause. To those reasons, the Court adds only the following two points, which are intended to supplement (and not supplant) the reasons for dismissal offered by Defendant Carrington. First, “[a] dismissal with prejudice has the effect of a final adjudication on the merits favorable to defendant and bars future suits brought by plaintiff upon the same cause of action.” Samuels v. N. Telecom, Inc., 942 F.2d 834, 836 (2d Cir. 1991) (quoting Nemaizer v. Baker, 793 F.2d 58, 60 [2d Cir. 1986]). “Such a dismissal constitutes a final judgment with the preclusive effect of ‘res judicata not only as to all matters litigated and decided by it, but as to all relevant issues which could have been but were not raised and litigated in the suit.’” Nemaizer, 793 F.2d at 60 (quoting Heiser v. Woodruff, 327 U.S. 726, 735 [1946]). “Res judicata acts as a bar ‘not only as to what was pleaded, but also as to what could have been pleaded.’” Magi XXI, Inc. v. Stato Della Cità Del Vaticano, 22 F. Supp. 3d 195, 201 (E.D.N.Y. 2014) (quoting In re Teltronics Servs., Inc., 762 F.2d 185, 193 [2d Cir. 1985[). "It must first be determined that the second suit involves the same 'claim' --- or 'nucleus of operative fact' --- as the first suit." Interoceania Corp. v. Sound Pilots, Inc., 107 F.3d 86, 90 (2d Cir. 1997). Before Plaintiff filed his Complaint in this action, U.S. Magistrate Judge Daniel J. Stewart provided the Court (in Action No. 18-CV-0211) with a Report-Recommendation (Dkt. No. 13-16) that recommended dismissal with prejudice of a complaint filed by Plaintiff, and the Court accepted and adopted that Report-Recommendation in its entirety.8 (Dkt. No. 13-17 [emphasis added].) In this action, Plaintiff’s Amended Complaint contains not only the same claims, but the same factual allegations, as his previously dismissed complaint. (Compare Dkt. No. 17 with Dkt. No. 13-15.) Plaintiff merely adds what he believes is a specific allegation of “a cloud on all title activity.” (Id.) Specifically, Plaintiff alleges that a “cloud of title” exists because of the “divergent paths taken by both the mortgage note and by the deed of trust.” (Dkt. No. 17, at 4-5.) However, Plaintiff fails to show how the factual allegations giving rise to his claims in this action differ from those giving rise to the claims in his previously dismissed complaint. Therefore, the Court finds that Plaintiff’s current factual allegations do not give rise to a different claim for purposes of the doctrine of res judicata. Second, some analysis is appropriate regarding the Court’s lack of subject-matter jurisdiction over Plaintiff’s claims against Defendant Carrington. With regard to Plaintiff’s invocation of diversity jurisdiction, “diversity jurisdiction does not exist unless each defendant is a citizen of a different State from each plaintiff.” Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978) (emphasis in original). “An individual’s citizenship, within the meaning of the diversity statute, is determined by his domicile…[in other words] the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Van Buskirk v. United Grp. of Cos., 935 F.3d 49, 53 (2d Cir. 2019) (quoting Palazzo ex rel. Delmage v. Corio, 232 F.3d 38, 42 [2000]). “For purposes of diversity jurisdiction, the relevant domicile is the parties’ domicile at the time the complaint was filed.” Van Buskirk, 935 F.3d at 53. For diversity purposes, a corporation is considered to a citizen of the State of its incorporation, and the State where it has its principal place of business. Hertz Corp. v. Friend, 559 U.S. 77, 88 (2010). In his Amended Complaint, Plaintiff alleges that Defendant Carrington is incorporated in, and has its principal place of business in, the State of New York (the same state of which he alleges that he is a citizen). (Dkt. No. 17, at 1, 3, 4.) Because Plaintiff and Defendant are now alleged to be citizens of the same state, there is no longer complete diversity between the parties. With regard to Plaintiff’s invocation of federal question jurisdiction, although his Amended Complaint checks a box alleging that the Court possesses federal question jurisdiction over Plaintiff’s claims, the Amended Complaint does not list any federal statutes, federal treaties, and/or Constitutional provisions that confer such jurisdiction; nor does it allege any facts plausibly invoking those authorities. (See generally Dkt. No. 17, at 3-6.) For all of these reasons (including those stated in Defendant Carrington’s memorandum of law), the Court finds that Plaintiff’s current claims against Defendant Carrington must be dismissed. B. Sua Sponte Analysis of Plaintiff’s Claims Against Defendant CitiFinancial Granted, no motion to dismiss has been filed by Defendant CitiFinancial. (See generally Docket Sheet.) However, as stated above in Part II.A. of this Decision and Order, the Court may sua sponte analyze and dismiss a pro se plaintiff’s claims for frivolousness. Moreover, as stated above in Part II.B. of this Decision and Order, the Court may (and, indeed, has a duty to) sua sponte analyze and dismiss any claims for lack of subject-matter jurisdiction. Here, the Court finds that the defects asserted by Defendant Carrington with regard to Plaintiff’s claims against it also plague Plaintiff’s claims against Defendant CitiFinancial. Moreover, the Court finds that those defects are so substantive, numerous and flagrant as to render Plaintiff’s claims against Defendant CitiFinancial frivolous. Finally, the Court finds, in the alternative, that the defects deprive the Court of subject-matter jurisdiction over Plaintiff’s claims against Defendant CitiFinancial. As a result, the Court finds that those claims may be, and must be, dismissed sua sponte. C. Nature of Dismissal Some discussion is appropriate regarding the nature of the dismissal of this action. 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) (citations omitted).9 “[A]n opportunity to amend is not required where the defects in the plaintiff’s claims are substantive rather than merely formal, such that any amendment would be futile.” Sorrentino v. Barr Labs. Inc., 09-CV-0591, 2010 WL 2026135, at *5 (May 20, 2010 N.D.N.Y.) (Suddaby, C.J.). It should be noted that this rule applies even to pro se plaintiffs. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 103 (2d Cir. 2000); Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.). As explained above in Part II of this Decision and Order, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12; rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow. Here, the Court finds that the above-described defects in Plaintiff’s Amended Complaint (which were not cured through prior amendment) are substantive in nature, such that better pleading would not cure them. For this reason, the Court finds that Plaintiff’s claims in this action should be dismissed without affording him another opportunity to amend them. ACCORDINGLY, it is ORDERED that Defendant Carrington’s motion to dismiss (Dkt. No. 13) is GRANTED; and it is further ORDERED that Plaintiff’s claims against Defendant Carrington in his Amended Complaint (Dkt. No. 17) are DISMISSED and it is further ORDERED that Plaintiff’s claims against Defendant CitiFinancial in his Amended Complaint (Dkt. No. 17) are sua sponte DISMISSED. Dated: April 30, 2020
