Gedeon v. Desousa

• Decision Date: 16 February 2017
• Docket Number: 16-cv-30058-MGM
• Parties: MICHAEL GEDEON, Plaintiff v. LISA DESOUSA, Defendant.
• Court: U.S. District Court — District of Massachusetts

MICHAEL GEDEON, Plaintiff v. LISA DESOUSA, Defendant.

16-cv-30058-MGM

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 16, 2017

REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO DISMISS

(Dkt. No. 13)

ROBERTSON, U.S.M.J.

I. INTRODUCTION

On or around May 3, 2012, the City of Springfield filed an emergency motion in the Hampden County Housing Court ("Housing Court") for access to property located at 155-157 Oak Grove Avenue owned by plaintiff Michael Gedeon ("Plaintiff" or "Gedeon") and Andrea Gedeon. The City was represented in the underlying code enforcement action by attorney Lisa DeSousa ("Defendant" or "DeSousa"). Following a series of hearings in the Housing Court, certain details of which are set forth below, the Housing Court appointed a receiver to remedy conditions on the property. A successor receiver ultimately was appointed and authorized by the Housing Court to record a lien in excess of $138,000 against the property. Plaintiff, who is self-represented,¹ has filed two law suits in this court based on these events. The sole defendant in this law suit is DeSousa. Plaintiff alleges that DeSousa defamed him in the course of the proceedings in the Housing Court and brings claims of invasion of privacy (Count I) and abuseof process (Count III) (Dkt. No. 1 at 7-8).² On August 8, 2016, Defendant's Motion to Dismiss ("Defendant's Motion") was referred to this court for report and recommendation (Dkt. No. 20). After Plaintiff was granted an extension of time to file his opposition to Defendant's Motion, the court heard oral argument on the motion on November 10, 2016 and took it under advisement at the conclusion of the hearing (Dkt. No. 28). For the reasons set forth below, the court recommends that Defendant's Motion be GRANTED for lack of subject-matter jurisdiction and that Plaintiff's claims be dismissed without prejudice. In the alternative, if the court concludes that subject-matter jurisdiction exists, the court recommends that Defendant's Motion be GRANTED and that Plaintiff's claims be dismissed with prejudice because DeSousa is shielded from Plaintiff's claims for damages by absolute immunity.

II. RELEVANT BACKGROUND³

On or around April 27, 2012, the Housing Court issued an emergency administrative search warrant with respect to property at 155-157 Oak Grove Avenue belonging to Plaintiff and Andrea Gedeon (Appendix 1 at 3). Several days later, a Springfield housing inspector executed the administrative warrant. On the basis of his inspection, he recommended immediate condemnation of the property based on fire hazards, the condition of the building, and debris on the property (id.). On May 2, 2012, the housing inspector posted the dwelling with a notice of condemnation and an order to vacate (id. at 4). On May 3, 2012, the Housing Court held an emergency hearing on the City's motion for access 155-157 Oak Grove Avenue to remove kerosene tanks from the basement. Plaintiff was present with counsel. The court allowed the City's motion to remove the tanks (or have Plaintiff remove them if he timely contracted with an entity properly licensed to do so) (id. at 1). Between May 25, 2012 and April 9, 2013, Plaintiff, who continued to be represented by counsel, entered into a series of agreements with the Housing Court to remedy the hazardous and blighted condition of the property. The City repeatedly re-inspected the property (when allowed access by Gedeon) and found that the hazardous and blighted condition of the property had not been remediated (id. at 4-6). Following a March 26, 2013 hearing, at which Gedeon was present with counsel and testified, the Housing Court found that the current state of the property rendered it unsafe for emergency personnel to enter, and that it was a fire risk and a blight on the neighborhood (id. at 6). In its April 9, 2013 Order, the Housing Court appointed MJA Business Enterprises, Inc. ("MJA") as receiver. Gedeon was given one week to remove any items from the property that he did not wantdiscarded,⁴ after which the receiver was authorized to discard or sell items left on the property (id. at 7-15). Following a May 12, 2015 hearing, Campagnari Construction, LLC ("Campagnari") was appointed as a successor receiver with all of the duties and powers previously granted to MJA, MJA was discharged as a receiver, and the court ordered that Campagnari's lien would be superior to any lien of MJA (id. at 21). On March 18, 2016, after an evidentiary hearing, the Housing Court approved Campagnari's lien in the amount of $138,531.50, which lien was recorded against the property, by authority of the Housing Court, in the Hampden County Registry of Deeds (id. at 26-28).

Plaintiff alleges that DeSousa filed an affidavit in the Housing Court proceedings making false statements in support of the City's motion for appointment of a receiver for 155-157 Oak Grove Avenue when the property did not need a receiver (Dkt. No. 1 at 2), and that DeSousa failed to inform the Housing Court that Gedeon had an agreement with the City for a date by which he was going to complete repairing the siding on the house (id.). He further alleges that DeSousa defamed him throughout the code enforcement proceedings related to his property by misrepresentations about the condition of property, and that DeSousa moved for appointment of a receiver in retaliation after his lawyer sent DeSousa a February 14, 2013 notice for a February 27, 2013 deposition of one Rudolph Williams in a code enforcement proceeding related to a different property in Springfield also owned by Gedeon (id. at 3; Dkt. No. 22 at 8). Plaintiff confirmed at the hearing on Defendant's Motion that the Housing Court proceedings relative to 155-157 Oak Grove Avenue form the entire basis of his claims against DeSousa. As relief, heseeks compensatory and punitive damages in an amount to be determined by a jury, along with attorney's fees and costs (Dkt. No. 1 at 8).

III. ANALYSIS

Defendant has moved to dismiss Plaintiff's claims on the grounds that (1) Plaintiff has failed to allege a jurisdictional basis to bring his claims in this court because there is no diversity between the parties and the complaint fails to state a cognizable federal claim; and (2) DeSousa, because she was acting as a municipal attorney prosecuting an administrative proceeding on behalf of the City of Springfield in the underlying action, is shielded by absolute immunity from Plaintiff's claims (Dkt. No. 14 at 4-5). Each of these contentions has merit, and supports dismissal of all claims in this case. As it is required to do, the court turns first to the question of subject-matter jurisdiction. See Ashcroft v. Iqbal, 556 U.S. 662, 671 (2009) ("Subject-matter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt.").

1. Subject-Matter Jurisdiction

a. Standard of review

A motion to dismiss based on lack of subject matter jurisdiction is properly brought under Federal Rule of Civil Procedure 12(b)(1), which is "a large umbrella, overspreading a variety of different types of challenges to subject-matter jurisdiction." Valentin v. Hosp. Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). When, as in this case, the defendant mounts a challenge to diversity jurisdiction, there are two formats for such a challenge. "The first way is to mount a challenge which accepts the plaintiff's version of jurisdictionally-significant facts as true and addresses their sufficiency, thus requiring the court to assess whether the plaintiff has propounded an adequate basis for subject-matter jurisdiction." Id. at 363 (citing Ohio Nat'l Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir. 1990); Menchaca v. Chrysler Credit Corp., 613 F.2d507, 511 (5th Cir. 1980). For purposes of this task, a court credits a plaintiff's well-pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor, but may augment the facts alleged in the complaint by considering the contents of explanatory affidavits or another source of uncontested facts. See id.

The second kind of challenge to subject-matter jurisdiction based on diversity involves contesting the accuracy of the jurisdictional facts asserted by the plaintiff, and proffering material of an evidentiary quality to support the challenge. This "'factual challenge' - permits (indeed, demands) differential factfinding. Thus, the plaintiff's jurisdictional averments are entitled to no presumptive weight; the court must address the merits of the jurisdictional claim by resolving the factual disputes between the parties." Id. Keeping in mind its obligation to read Plaintiff's complaint generously, see, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007), the court addresses first whether the basis for subject-matter jurisdiction asserted by Plaintiff passes muster as a matter of fact, and concluding that it does not, considers briefly whether a basis for federal question jurisdiction appears as sufficiently alleged in the complaint.

i. Diversity jurisdiction

Plaintiff asserts that this court has jurisdiction based on diversity of citizenship and an amount in controversy that exceeds $75,000 (Dkt. No. 1 at 4). "Federal jurisdiction based on diversity requires that the matter in controversy be between citizens of different states." Padilla-Mangual v. Pavia Hosp., 516 F.3d 29, 31 (1st Cir. 2008) (citing 28 U.S.C. § 1332(a)(1)). Plaintiff states that he is domiciled in Springfield, Massachusetts (Dkt. No. 1 at 1). He has failed to identify DeSousa's domicile, but he avers that her place of business is also in Springfield, Massachusetts (id.). DeSousa has submitted an affidavit - which is by definition material of evidentiary quality - in which she states that she not only works, but also resides, in Springfield,Massachusetts (Dkt. No. 14-1 at 1). "For purposes of diversity, a person is a citizen of the state in which he is domiciled." Padilla-Mangual, 516 F.3d at 31. "[T]he mode of proving...