Cunha v. Moukawsher
Jurisdiction | United States,Federal,Connecticut |
Parties | NICKOLA CUNHA, Plaintiff, v. THOMAS MOUKAWSHER, in his personal and official capacity, Defendant. |
Decision Date | 15 January 2024 |
Court | U.S. District Court — District of Connecticut |
Docket Number | 3:23-cv-37 (VAB) |
RULING AND ORDER ON MOTION TO DISMISS
Nickola Cunha (“Plaintiff” or “Ms. Cunha”) brings this pro se Complaint against Thomas Moukawsher (“Defendant” or “Judge Moukawsher”) in his official and personal capacity.
Judge Moukawsher has moved to dismiss this Complaint in its entirety.
For the following reasons, the motion to dismiss is GRANTED.
Nickola Cunha is a disbarred attorney, and Judge Moukawsher is a Connecticut Superior Court Judge who allegedly disbarred her on January 25, 2022.[1]Complaint, ECF No. 1 (Jan. 9, 2023) (“Compl.”) ¶ 2.
Ms. Cunha alleges Judge Moukawsher disbarred her “for cause of speech made in zealous advocacy for her client, being a violation of First, Fifth, and Fourteenth Amendment protections, while chilling expression and advocacy, a societal detriment; implicating Connecticut State government for inability to properly select, train, manage justices, to assure the proper quality and administration of justice, misuse of federal funds notwithstanding.” Id. Ms. Cunha also alleges that Judge Moukawsher acted with “absolute discretion in personal dislike of zealous advocacy” and that he “cit[ed] unconstitutional authority of practice rule 2-45, to summary [sic] disbar” her. Id. ¶ 9. Ms. Cunha claims “[t]he property interest in a law license demands due process invoked by Fourteenth Amendment, denying Moukawsher the combined roles of accuser, trier, judge, jury, and executioner, of one tyrant in a black robe.” Id. ¶ 14.
Ms. Cunha seeks compensatory damages, declaratory judgment, injunctive relief, punitive damages, attorneys' fees, and other damages deemed just and proper under 42 USC §§ 1983, 1988 for First, Fifth, and Fourteenth Amendment violations and under 18 USC §242 for “criminal mischief[.]” Id. ¶ 4.
Id. at *3. The court also found that Ms. Cunha lied about whether a report stated that the defendant had “absolutely” committed sexual assault against his children. Id. at *4 () . At a later disciplinary hearing, one held after finding that Ms. Cunha had lied, and in which she was “urged by the court to get her own lawyer, and . . . told in advance of the seriousness of the proceedings,” Id. at 8, Ms. Cunha stated:
Your Honor has engaged in malfeasance, gross malfeasance, I will not be intimidated. I will not be harassed by this Court. I will remind this Court that your so-called historical writing Memorandum of Decision where you touch upon the history that it is, it is a joke, and it is pathetic, and you should be ashamed of yourself for subjecting myself to that type of rhetoric [ . . ] Frankly, Judge, I am ashamed to even be sitting before you[.]
Id. at *6. The court then concluded Ms. Cunha had violated at least seven rules in the Rules of Professional Conduct and issued an opinion disbarring her. Id. at *6-7. Ms. Cunha's Writ of Error appealing her disbarment is currently pending at the State of Connecticut Appellate Court. See Mot. to Dismiss Appendix, ECF No. 12-2. (Apr. 24, 2023).
On January 9, 2023, Ms. Cunha filed her Complaint. See Compl. ECF No. 1 (Jan. 9, 2023).
On April 24, 2023, Judge Moukawsher filed a Motion to Dismiss. See Mot. to Dismiss, ECF No. 12 (Apr. 24, 2023); Def.'s Mem. in Supp of Mot. to Dismiss, ECF No. 12-1 (April 24, 2023) (“Mem.”).
On May 31, 2023, Ms. Cunha filed her memorandum in opposition to the motion to dismiss. See Mem. in Opp., ECF No. 18 (May 31, 2023) (“Opp.”).
On June 14, 2023, Judge Moukawsher filed his reply. See Reply to Response, ECF No. 19 (Jun. 14, 2023) (“Reply”).
“A case is properly dismissed for lack of subject matter jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); FED. R. CIV. P. 12(b)(1). The plaintiff bears the burden of establishing by a preponderance of the evidence that the court has subject matter jurisdiction over the claims. Id.
In every case, a court must determine whether it has subject matter jurisdiction. In evaluating a motion under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, the Court “must accept as true all material factual allegations in the complaint,” but need not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). A case is properly dismissed under Rule 12(b)(1) where the district court “lacks the statutory or constitutional power to adjudicate the case.” Morrison v. Nat'l Austl. Bank. Ltd., 547 F.3d 167, 170 (2d Cir. 2008).
The burden to prove subject matter jurisdiction generally falls on the plaintiff, but where a “defendant official or government entity asserts the Eleventh Amendment as the basis of the 12(b)(1) motion, the burden falls to that entity to prove its entitlement to dismissal on the grounds of immunity from suit.” Pawlow v. Dep't of Emergency Servs. & Pub. Prot., 172 F.Supp.3d 568, 573 (D. Conn. 2016) (internal quotation marks omitted) (citing Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 239 (2d Cir. 2006)).
A complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). Any claim that fails “to state a claim upon which relief can be granted” will be dismissed. Fed.R.Civ.P. 12(b)(6). In reviewing a complaint under Rule 12(b)(6), a court applies a “plausibility standard” guided by “[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
First, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) . “[T]he tenet that a court must accept a complaint's allegations as true is inapplicable to threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.
Second, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679. Thus, the complaint must contain “factual amplification . . . to render a claim plausible.” Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)). Iqbal, 556 U.S. 663-64 (citations omitted).
When reviewing a complaint under Federal Rule of Civil Procedure 12(b)(6), the court takes all factual allegations in the complaint as true. Iqbal, 556 U.S. at 678. The court also views the allegations in the light most favorable to the plaintiff and draws all inferences in the plaintiff's favor. Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also York v. Ass'n of the Bar of the City of New York. 286 F.3d...
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