Garcia v. United States
| Decision Date | 19 February 2019 |
| Docket Number | 18 Civ. 2200 (ER) |
| Parties | NILIANA N. GARCIA, Plaintiff, v. UNITED STATES OF AMERICA, Defendant, -and- ALBERT D. NASSAR, Nominal Defendant. |
| Court | U.S. District Court — Southern District of New York |
Ramos, D.J.:
Niliana N. Garcia ("Garcia") brings this action against the United States of America (the "Government"), alleging an ownership interest in an apartment the Government seized from her former husband and seeking a temporary restraining order on the Government's seizure of the apartment. Before the Court is the Government's motion to dismiss the complaint with prejudice for lack of subject matter jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure 12(b)(6). For the reasons set forth below, the Government's motion to dismiss with prejudice is GRANTED.
On July 2, 2001, Niliana Garcia and her ex-husband Albert Nassar ("Nassar") created the Nassar Family Irrevocable Trust (the "Trust") with Nassar appointed as the trustee, Garcia as the settlor of the trust, and their two children as the beneficiaries. See Compl. ¶¶ 2, 3. In the same month, the couple separated. Id. ¶ 2. On July 31, 2001, Nassar purchased a luxury condominium located at 845 United Nations Plaza, Apartment 53E, New York, New York (the "Apartment"). Id. ¶ 4. Nassar transferred the Apartment to the Trust shortly thereafter on October 15, 2001. Id. A few years later, on November 18, 2003, the marriage between Nassar and Garcia was dissolved by a Florida court and a divorce settlement agreement ("Divorce Agreement") was executed. Id. ¶ 5. In the Divorce Agreement, Nassar agreed to pay Garcia $3,000 per month in child support. Id.
The Divorce Agreement also contained a list of marital assets subject to equitable distribution, including the Apartment which was allocated in its entirety to Nassar. Doc. 10-1 at 34. Nassar and Garcia both agreed to "releas[e] the other from all causes of actions, claims, rights or demands whatsoever in law or in equity that either of the Parties ever had, or now has, against the other including, without limitation . . . equitable distribution of property." Id. at 19.
In November 2013, the Government filed an action against Nassar and the Trust (collectively, the "Nassar Defendants") in the case captioned United States v. Nassar, 13 Civ. 8174 (ER) (the "Foreclosure Action") to collect a long-overdue tax liability of over $2.6 million that Nassar owed the Government. See Nassar, 13 Civ. 8174. In September 2016, the Court ruled in favor of the Government in the Foreclosure Action, holding that Nassar transferred the Apartment to the Trust as his nominee and that Nassar was the true property owner, not the Trust. Nassar Family Irrevocable Trust v. United States, 13 Civ. 5680 (ER), 13 Civ. 8174 (ER), 2016 WL 5793737, at *9 (S.D.N.Y. Sept. 30, 2016).
In October 2016, Nassar appealed to the United States Court of Appeals for the Second Circuit. The Second Circuit, by summary order, affirmed this Court's judgment in the Foreclosure Action, and held that "Nassar is the beneficial owner of the apartment and the Trustis his legal title-holding nominee." United States v. Nassar, 699 F. App'x 46, 48 (2d Cir. Oct. 20, 2017). After an amended judgment in the Foreclosure Action, the Government is currently foreclosing its tax liens against the Apartment to satisfy its judgment of $2,692,634.56 against Nassar.1
In her complaint, Garcia now asserts an ownership interest in the Apartment, arguing that it was not considered as subject to marital distribution during the Florida divorce proceedings. Compl. ¶ 6. Garcia alleges that she did not previously make a claim to the Apartment in connection with the Foreclosure Action because she believed it belonged to the Trust. Id. ¶ 10.2
In light of the Second Circuit's judgment in the Foreclosure Action, Garcia alleges the Apartment is now converted to marital property subject to equitable distribution, since it was determined that Nassar was always the true owner of the Apartment. Compl. ¶¶ 8, 9. For this reason, she seeks a judicial determination that she has an ownership interest in the Apartment and a temporary restraining order precluding the Government from foreclosing on the Apartment. She also seeks a judicial order applying the proceeds of the sale of the Apartment to satisfy Nassar's overdue child support obligation, which she contends is now over $400,000.
On November 30, 2017, Garcia filed the instant complaint in the Supreme Court of the State of New York, New York County, Index No. 160609/2017, which named the United States of America as a defendant and Albert D. Nassar as a nominal defendant. See Compl. On March 12, 2018, the Government removed Garcia's complaint to this Court pursuant to 28 U.S.C. § 1442(a)(1). The Government now moves to dismiss the complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure.
A district court must dismiss a case under Rule 12(b)(1) for lack of subject matter jurisdiction when it lacks the statutory or constitutional power to adjudicate the case. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Lack of subject matter jurisdiction is not waivable and a party or the court may raise it at any time as a reason to dismiss the case. Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003). A plaintiff has the burden of proving that subject matter jurisdiction exists. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994). Where the district court relies solely on the pleadings and supporting affidavits, the plaintiff need only make a prima facie showing that subject matter jurisdiction exists. Id.
Under Rule 12(b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Koch v. Christie's Int'l, PLC, 699 F.3d 141, 145 (2d Cir. 2012). However, the Court is not required to credit "mere conclusory statements" or "threadbare recitals of the elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Federal Rules of Civil Procedure 8 "marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. If the plaintiff has not "nudged [her] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.
The complaint provides no basis for the exercise of federal subject matter jurisdiction. Federal subject matter jurisdiction exists only when a federal question is presented (28 U.S.C. § 1331), or when there is diversity of citizenship and the amount in controversy exceeds $75,000.00 (28 U.S.C. § 1332). If there is a lack of subject matter jurisdiction, the court must dismiss the complaint in its entirety. See Fed. R. Civ. P. 12(h)(3); see also, e.g., Marland v. Heysel, No. 08 Civ. 3751 (LAK) 2008 WL 2704318, at *3 (S.D.N.Y. July 10, 2008) (); Cooper v. Cianfrocca, No. 01 Civ. 4749 (LAK), 2001 WL 640808, at *1 (S.D.N.Y. June 7, 2001) ().
Additionally, the United States has sovereign immunity and cannot be sued without its consent or an express waiver by Congress. See United States v. Mitchell, 463 U.S. 206, 212(1983). The government's sovereign immunity may be waived if such a waiver is "'unequivocally expressed' in statutory text, and cannot simply be implied." Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992)). Furthermore, such a waiver will be strictly construed in favor of the sovereign and not enlarged beyond the statutory language. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86 (1983) (quoting E. Transp. Co. v. United States, 272 U.S. 675, 686 (1927)). Since the doctrine is jurisdictional in nature, "the plaintiff bears the burden of establishing that her claims fall within an applicable waiver." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Here, the United States has not expressed its consent to be sued. Therefore Garcia, as plaintiff in this case, bears the burden of establishing an applicable waiver of sovereign immunity. She has failed to successfully assert any such waiver in her complaint.
Garcia contends 28 U.S.C § 1346(f) is the applicable express waiver of sovereign immunity but asserts this statute as a basis for subject matter jurisdiction in her memorandum, not her complaint. Doc. 21 at 6. Similarly, Garcia suggests that § 1346(f) formed the genesis of the Government's removal of this case from New York state court to this Court. Id. However, such an assumption does not have legal merit for deciding subject matter jurisdiction since it is the plaintiff, not the defendant, who bears the burden of establishing that her claims are within a...
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