DaCosta v. Wilmington Trust, N.A. et al
| Carl DaCosta |
| Diana Search, Maureen Byrne, Wilmington Trust, N.A., McCalla Raymer Leibert Pierce, LLC and Maureen A. Byrne |
| 3:2019cv00913 |
| July 26, 2019 |
| US District Court for the Northern District of New York |
| Miroslav Lovric |
| Thomas J McAvoy |
| Real Property: Other |
| None |
Docket Report
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Filing 8
TEXT ORDER granting Plaintiff's #7 letter request for a 30 day extension of time to file objections to the Court's #6 Order and Report-Recommendation.Plaintiff's objections to the #6 Order is due by 10/16/19.Authorized by Senior Judge Thomas J. McAvoy on 9/17/19. (Copy served via regular mail)(sfp, )
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| Filing 7 Letter Motion requesting extension of 30 days to respond filed by Carl DaCosta submitted to Judge Lovric. (sfp, ) |
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Filing 6
ORDER and REPORT-RECOMMENDATION: Ordered that Pltf's #2 IFP application is denied without prejudice to refiling. Pltf is directed to either pay the $400.00 filing fee or submit a renewed and complete motion to proceed in forma pauperis by 9/28/19. Failure to comply will result in the issuance of an R&R to the assigned District Judge that the action be dismissed. It is Recommended that Pltf's #1 Complaint be accepted for filing with respect to Pltf's First, Second, Third, Fifth, and Sixth Claims to the extent they allege fraud and seek monetary damages. It is Recommended that the Court dismiss with leave to replead Pltf's (1) Fourth Claim, and (2) First, Second, Third, Fifth, and Sixth Claims to the extent that they allege forgery of the loan documents, fraud and seek relief other than monetary damages, and that the parties in the state court proceeding lacked standing, pursuant to the Rooker-Feldman doctrine because the Court lacks subject matter jurisdiction over these claims. It is Recommended that, in the event the Pltf does not file an amended complaint and the above recommendations are adopted, the case should move forward with respect to Pltf's First, Second, Third, Fifth, and Sixth Claims as stated above. ( Objections to R&R due by 9/16/2019, Case Review Deadline 9/19/2019). Signed by Magistrate Judge Miroslav Lovric on 8/29/19. (Attachments: #1 Exhibits part 1, #2 Exhibits part 2)(Copy served via regular mail)(sfp, )
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Filing 5
TEXT ORDER: Plaintiff brings an action complaining of defendant's conduct related to a foreclosure action of plaintiff's residential property. See Dkt. #1 . He also brings a Motion for an Injunction-Emergency of Stay. Dkt. #3 . Plaintiffs documents are unclear but it appears that he seeks an injunction staying a state court eviction warrant entered in the Village of Greene Court on June 28, 2019. See Complaint, Exhibit E. Due to the AntiInjunction Act, 28 U.S.C. 2283, the Court lacks jurisdiction to enjoin the state-court eviction proceeding. See Armstrong v. Real Estate Int'l, Ltd., No. 05 CV 5383(SJ), 2006 WL 354983, at *25 (E.D.N.Y. Feb. 14, 2006). This Act presents an absolute ban on enjoining any state court proceeding, unless the facts of the case bring the matter within one of the three narrowly construed exceptions. Sinisgallo v. Town of Islip Hous. Auth., 865 F. Supp.2d 307, 317 (E.D.N.Y. 2012). Therefore, [c]ourts in this Circuit have repeatedly held that the AntiInjunction Act bars a federal court from enjoining state-court eviction proceedings. Kristopher v. Stone St. Properties, LLC, No. 13 CIV. 566 RJS, 2013 WL 499752, at *3 (S.D.N.Y. Jan. 29, 2013)(citing Allen v. N.Y. City Hous. Auth., No. 10 Civ. 168(CM)(DCF), 2010 WL 1644956, at *3 (S.D.N.Y. Apr. 20, 2010) (collecting cases)). Here, based on the allegations in Complaint and the Motion for an Injunction-Emergency of Stay, none of the AntiInjunction Act's three narrowly construed exceptions appear to apply. Plaintiff's motion for an injunction staying the state court eviction proceeding is denied with leave to renew upon a showing that an Anti-Injunction Act exception applies.Furthermore, to the extent Plaintiffs motion seeks relief other than to enjoin the state-court eviction proceeding, the application for a TRO is denied with leave to renew. Local Rule 7.1(f) provides: "Any application for a temporary restraining order must be served on all other parties unless Fed. R. Civ. P. 65 otherwise permits." There is no indication that Plaintiff served his motion on Defendants, and thus the Court treats the application as being made ex parte. Fed. R. Civ. P. 65 provides: "(b) Temporary Restraining Order. (1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if: (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required." Plaintiff has not certified in writing that he made efforts to give notice to the Defendants or explained reasons why advance notice should not be required.To the extent Plaintiffs application is deemed a request for an order to show cause, he also fails to comply with the Local Rules. Local Rule LR 7.1(e) provides: "[A] motion brought by Order to Show Cause must include an affidavit clearly and specifically showing good and sufficient cause why the standard Notice of Motion procedure cannot be used. Reasonable advance notice of the application for an Order to Show Cause must be given to the other parties, except in those circumstances where the movant can demonstrate, in a detailed and specific affidavit, good cause and substantial prejudice that would result from the requirement of reasonable notice."Plaintiff fails to include an affidavit clearly and specifically showing good and sufficient cause why the standard Notice of Motion procedure cannot be used for the other relief he seeks in his motion, or that he gave reasonable advance notice of the motion to Defendants.Based on these procedural deficiencies, the application for a TRO relative to matters other than an injunction of the state court eviction proceeding is denied with leave to renew upon proper papers. Authorized by Senior Judge Thomas J. McAvoy on 7/26/2019. (Copy served upon Plaintiff via regular mail)(amt)
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| Filing 4 PRO SE HANDBOOK and NOTICE issued and explained to Plaintiff at time complaint was filed (amt) |
| Filing 3 MOTION for Injunction Emergency of Stay by Carl DaCosta.(amt) |
| Filing 2 MOTION for Leave to Proceed in forma pauperis filed by Carl DaCosta. (Attachments: #1 Proposed Summons as to Wilmington Trust, #2 Proposed Summons as to Diana Search, #3 Proposed Summons as to Maureen Byrne, #4 Proposed Summons as to McCalla Raymer) Motions referred to Miroslav Lovric. (amt) |
| Filing 1 COMPLAINT against Maureen Byrne, McCalla Raymer Leibert Pierce, LLC, Diana Search, Wilmington Trust, N.A. filed by Carl DaCosta. (Attachments: #1 Exhibit(s) A, #2 Exhibit(s) B, #3 Exhibit(s) C, #4 Exhibit(s) D, #5 Exhibit(s) E, #6 Exhibit(s) F, #7 Exhibit(s) G, #8 Exhibit(s) H, #9 Civil Cover Sheet)(amt, ) |
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