Diaz v. Pataki, 03 Civ. 10194(SHS).

• Citation: 368 F.Supp.2d 265
• Decision Date: 26 April 2005
• Docket Number: No. 03 Civ. 10194(SHS).,03 Civ. 10194(SHS).
• Parties: Oscar DIAZ, on behalf of himself and all others similarly situated, Plaintiff, v. George E. PATAKI, individually and in his official capacity as Governor of the State of New York; Eliot Spitzer, individually and in his capacity as Attorney General of the State of New York; Alan Hevesi, individually and in his capacity as Comptroller of the State of New York; Hector Diaz, in his official Capacity as Clerk of the County of the Bronx, and on behalf of a defendant class of New York County Clerks; and Churchill Mortgage Investment Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

368 F.Supp.2d 265

Oscar DIAZ, on behalf of himself and all others similarly situated, Plaintiff, v. George E. PATAKI, individually and in his official capacity as Governor of the State of New York; Eliot Spitzer, individually and in his capacity as Attorney General of the State of New York; Alan Hevesi, individually and in his capacity as Comptroller of the State of New York; Hector Diaz, in his official Capacity as Clerk of the County of the Bronx, and on behalf of a defendant class of New York County Clerks; and Churchill Mortgage Investment Corporation, Defendants.

No. 03 Civ. 10194(SHS).

United States District Court, S.D. New York.

April 26, 2005.

COPYRIGHT MATERIAL OMITTED

Janet Benshoof, New York, NY, for plaintiff.

OPINION & ORDER

STEIN, District Judge.

Introduction

Oscar Diaz brings this action pursuant to 42 U.S.C. § 1983 for alleged violations of the Fifth and Fourteenth Amendments to the United States Constitution. Diaz claims that New York State's lis pendens statute, N.Y. C.P.L.R. §§ 6501-6515 violates his rights to due process and equal protection of the laws both on its face and as applied to him.

Defendants New York State Governor George E. Pataki, Attorney General Elliot Spitzer, Comptroller Alan Hevesi, and Bronx County Clerk Hector Diaz have now moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the complaint for failure to state a claim. For the reasons set forth below, that motion is granted.

I. Facts

The following facts are taken from the complaint and are assumed to be true for the purposes of this motion. See McKenna v. Wright, 386 F.3d 432, 434 (2d Cir.2004) (citing Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 250 (2d Cir.2001)). Plaintiff Oscar Diaz ("Diaz") is a New York State resident of Bronx County. (Compl.¶ 7). Defendant Churchill Mortgage Investment Corporation is a corporation located in Florida and organized pursuant to the law of Delaware.¹ (Id. ¶ 12). The other defendants are all officials of the state of New York: George E. Pataki is the Governor; Elliot Spitzer is the Attorney General; Alan G. Hevesi is the Comptroller; and Hector Diaz is the clerk of Bronx County (collectively, "the state defendants"). (Id. ¶¶ 8-11). Diaz sues Pataki, Spitzer, and Hevesi in both their individual and official capacities. (Id. ¶¶ 8-10). He sues Hector Diaz in his official capacity only. (Id. ¶ 11).

In approximately 1992, Diaz took out a mortgage on his home from Churchill in the amount of $65,000. (Id. ¶¶ 31-33). He subsequently "fell behind in his mortgage payments" and in 2003 Churchill "commenced foreclosure proceedings ... in the Supreme Court of Bronx County." (Id. ¶ 35). At the same time, Churchill filed a notice of pendency, also known as a lis pendens, against Diaz's home with the clerk of Bronx County, to whom Churchill paid a state filing fee. (Id. ¶ 23, 24, 35).

Diaz claims that the notice of pendency "makes it, as a practical matter, impossible for him to sell the home." (Id. ¶ 37). However, Diaz does not allege that he attempted to sell the home or that an interested buyer declined to purchase the home after learning of the notice of pendency. Diaz alleges that he has meritorious defenses to the mortgage foreclosure action that, according to the statutory scheme, "could not be raised to lift the lis pendens," (id. ¶ 40), but Diaz does not allege that he ever moved in the Supreme Court of Bronx County to remove the lis pendens.

II. Diaz's Complaint and Defendants' Motion

Diaz claims that New York's lis pendens statute, N.Y. C.P.L.R. §§ 6501-6515, both facially and as applied to him, violates his rights to due process and equal protection of the laws. Although Diaz's equal protection claim is left unexplained, he founds his due process claim upon Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), which, he claims, "set new and uniform due process standards" that "rendered... unconstitutional and void" New York's lis pendens statute. (Compl.¶¶ 4, 28). However, Diaz overlooks the fact that Doehr concerned Connecticut's attachment statute, not a lis pendens statute — a crucial distinction for the purposes of due process analysis. Nonetheless, Diaz alleges that Doehr's effect upon New York's lis pendens provision was so patent that defendants "knew or should have known" the New York law was unconstitutional. (Compl.¶ 28).

Diaz seeks preliminary and permanent injunctive relief, declaratory relief, actual and punitive damages of at least $200,000, and costs and fees. (Id. at 7). He also requests that the Court certify a plaintiff and a defendant class and order that all lis pendens filing fees "collected by state defendants" since Doer was decided in 1991, "be deposited in a fund to be used by one or more of New York law schools' legal clinics for the assistance of impoverished debtors." (Id.).

The state defendants assert several grounds in support of their motion to dismiss the complaint. First, the state statute does not violate due process, either facially or as applied to the facts alleged in Diaz's complaint. Second, Diaz's complaint fails to state an equal protection claim because he has not alleged the existence of a similarly situated class of persons who were treated differently than he. Third, the complaint fails to state a damages claim against defendants Pataki, Spitzer, or Hevesi in their individual capacities because it fails to allege any wrongful act by those defendants. Fourth, the Eleventh Amendment bars Diaz's claims seeking the forfeiture of lis pendens filing fees, or alternatively, Diaz lacks standing to seek the forfeiture of fees that he has not paid.

III. Standard for a Motion to Dismiss

On a Rule 12(b)(6) motion the court must assess only the "legal feasibility of the complaint...." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir.1998) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984)). As set forth above, in deciding a motion to dismiss the Court must accept as true all of the plaintiff's factual allegations and draw all "reasonable inferences" in favor of the plaintiff. Mason v. Amer. Tobacco Co., 346 F.3d 36, 39 (2003). "On the other hand, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." Id. (internal quotation marks omitted); see also Cooper, 140 F.3d at 440 ("[B]ald assertions and conclusions of law are insufficient...."). Ultimately, the Court may dismiss the plaintiff's complaint if "it appears beyond doubt that he can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Swierkiewicz v. Sorema, 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).

IV. Discussion

A. Plaintiff's Claim for Injunctive Relief Is Moot

Diaz seeks preliminary and permanent injunctions "restraining defendants, their employees, agents, and servants from enforcing" the lis pendens statute against him. (Compl. at 7). "Pursuant to Article III" of the U.S. Constitution, federal courts "have jurisdiction only over live cases and controversies." ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir.2004). Thus, when a claim has become moot the court is "duty bound" to dismiss it. Arthur v. Manch, 12 F.3d 377, 380 (2d Cir.1993). Additionally, since mootness is a jurisdictional question, the Court may raise it sua sponte. See United States v. Suleiman, 208 F.3d 32, 36 (2d Cir.2000). The court may also refer to evidence outside the pleadings in determining the issue of mootness. See Flores v. Southern Peru Copper Corp., 343 F.3d 140, 161 n. 30 (2d Cir.2003); Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir.2002); Lawal v. I.N.S., No. 94 Civ. 4606 1996 WL 384917 (S.D.N.Y. July 10, 1996). A claim becomes moot when an event occurs that makes it impossible for a court to grant the plaintiff effectual relief even if he should prevail. See Suleiman, 208 F.3d at 36.

Although Diaz alleges in his complaint that the notice of pendency made "it, as a practical matter, impossible for him to sell [his] home," by letter dated March 4, 2005, plaintiff's counsel informed the Court that Diaz "has been able to sell the property that was subject to the Notice of Pendency" and therefore he "no longer requires injunctive relief." (Compl. ¶ 37; Letter to the Court from Toby Golick, Esq. dated March 4, 2005). Because Diaz has sold the home that he claims was impaired by the lis pendens, any injunction restraining defendants from enforcing the lis pendens would be meaningless. Accordingly, his claim for injunctive relief is dismissed as against all defendants.

B. Diaz Has Failed to State a Claim for Money Damages Against the State Defendants

1. Diaz Has Failed to Allege Adequately the Personal Involvement of Defendants Pataki, Spitzer, and Hevesi

As set forth above, Diaz brings a claim for damages against Messrs. Pataki, Spitzer, and Hevesi in their individual capacities. "It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir.2001). The personal involvement of supervisory officials, such as Pataki, Spitzer, and Hevesi, requires that they either (1) "participated directly in the alleged constitutional violation"; (2) "failed to remedy the wrong" after being informed of the violation through either a report or appeal; (3) created or continued "a policy or custom under which unconstitutional practices occurred"; (4) were "grossly negligent in supervising subordinates who committed" the unconstitutional acts; or (5) exhibited "deliberate indifference" to plaintiff's rights by failing to act on information that constitutional violations were occurring. Id. (internal quotation marks omitted).

Plaintiff has failed to allege any facts that give...