Latta v. Luckman
| Decision Date | 21 November 2022 |
| Docket Number | Civil Action 21-17236 |
| Parties | TRACEY A. LATTA, Plaintiff, v. BRUCE S. LUCKMAN, ESQ., KRISTOFER B. CHIESA, ESQ., AND LAW FIRM OF SHERMAN SILVERSTEIN, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This action concerns claims of fraud and discrimination stemming from Defendants' representation of a client in a tax sale foreclosure action against Plaintiff. Currently pending before the Court is a motion by Defendants Bruce S. Luckman Kristofer B. Chiesa, and the Law Firm of Sherman Silverstein (collectively “Defendants”) to dismiss Plaintiff's Amended Complaint (“FAC”). D.E 22. The Court reviewed the parties' submissions[1] and decided the motion without oral argument pursuant to Fed.R.Civ.P. 78(b) and L. Civ. R 78.1(b). For the reasons set forth below, the Court will dismiss Plaintiff's federal claims with prejudice and decline to exercise supplemental jurisdiction over Plaintiff's state claims.
Plaintiff Tracey A. Latta's claims stem from Defendants' representation of TLF National Tax Lien Trust (“TLF”) in a tax sale foreclosure action (“Underlying Action”)[3] against Plaintiff. See FAC ¶¶ 13, 17. Judge Koprowski presided over the Underlying Action, which was filed on October 9, 2018, in the Superior Court of New Jersey, Chancery Division in Essex County. Ex. A, Underlying Complaint (D.E. 22-3).[4] Latta proceeded pro se and filed an answer with defenses and counterclaims, asserting that TLF lacked standing, obtained a fraudulent assignment, and lacked proof of ownership. Ex. B, Latta Answer at 5-24 (D.E. 22-4). TLF moved to strike Latta's answer and counterclaims and requested that the Underlying Action be returned to the Office of Foreclosure to proceed as uncontested. Ex. C, TLF Notice of Mot. to Strike (D.E. 22-5), Ex. D, TLF Proposed Order (D.E. 22-6). Latta opposed this motion, again arguing that there was no valid assignment and that TLF lacked ownership and standing. Ex. E, Latta Opp. (D.E. 22-7). On September 20, 2019, Judge Koprowski ordered that the matter be returned to the Office of Foreclosure to proceed as uncontested. FAC ¶ 13, Ex. O, 9/20/19 Koprowski Order (D.E. 22-17). Attached to the September 20, 2019 order (“Order”) is four pages of “Reasons,” which conclude that TLF had a valid assignment of the tax sale certificate and that there was no evidence that the certificate was procured by fraud. Ex. O, 9/20/19 Koprowski Order (D.E. 22-17). Latta alleges that Defendants falsified the Order and its reasoning on behalf of their client, TLF. See, e.g., FAC ¶¶ 13, 17. This allegation has been raised by Latta numerous times in the Underlying Action and related and parallel proceedings, including in her direct appeal and in a bankruptcy filing.
Latta first alleged that the Order was fraudulent in a letter opposing TLF's motion for entry of default in the Underlying Action. See Ex. R, 10/16/19 Latta Opp. Ltr. at 1-2 (D.E. 22-20). The letter asserted that Defendants “tampered” with Judge Koprowski's Order, D.E. 22-17, by “re-fil[ing] the Order from his office's portal, [and] attaching the four (4) page reasoning.” See Ex. R, 10/16/19 Latta Opp. Ltr. at 1-2 ¶¶ 6, 7 (D.E. 22-20). The purported basis for this allegation was that the “four page [‘reasons'] document is not referred to in Judge Koprowski's Order as an Addendum, nor is it signed by the Judge, as being a part of the Order.” Id. at 1 ¶ 6. The letter also alleged that TLF lacked standing and had an invalid tax sale certificate. Id. at 1 ¶ 5. On October 11, 2019, Judge Koprowski issued an order for entry of default. Ex. Q, Order Entering Default (D.E. 22-19). Because Latta's letter was dated October 8, 2019, but not docketed until October 16, 2019, 5 days after the order for entry of default was entered, it does not appear that Judge Koprowski considered Plaintiff's arguments in deciding the motion.
Latta then raised the arguments again after TLF filed its motion for entry of order to fix the amount, time, and place for redemption of the tax sale certificate (“Motion to Fix”). Ex. Y, Mot. To Fix (D.E. 22-27). In Latta's opposition certification, she asserted that the Order was falsified and that this amounted to perjury and fraud. Ex. Z, Opp. Cert. at 2-8 (D.E. 22-28). Latta also filed a letter to Judge Koprowski on May 10, 2021, asserting that TLF's action of falsifying the Order was unlawful. Ex. AA, 5/10/21 Ltr. to Koprowski (D.E. 22-29). On May 14, 2021, Judge Alper of the Chancery Division granted TLF's Motion to Fix. Ex. BB, 5/14/21 Alper Order (D.E. 2230).
Latta also raised the same arguments in her related Chapter 13 bankruptcy proceeding (“Bankruptcy Action”).[5] On June 22, 2020, Latta moved to dismiss TLF's proof of claim, challenging TLF's standing and the validity of its assignment and ownership. Ex. S, MTD Proof of Claim at 5-7, ¶¶ 9, 12, 13 (D.E. 22-21). Plaintiff also asserted that “the four (4) page reasoning attached to Judge Koprowski's September 2019 Order . . . was prepared and filed by [Luckman] . . . and he is now using it in this Objection fraudulently.” Ex. U, Latta Reply at 2 ¶ 7 (D.E. 22-23); Ex. T, TLF Opp. to MTD (D.E. 22-22). She argued that the “[d]ocket has not acknowledged this document as ‘submitted by the court.” Ex. U, Latta Reply at 2 ¶ 7 (D.E. 22-23). In response, TLF filed a Certification on behalf of Bruce Luckman, stating that “I understand that [Latta] has claimed that I somehow filed an order and statement of reasons with the Superior Court on September 20, 2019,” “[t]his claim is false,” and “[t]he order and statement of reasons were uploaded to the Superior Court's Ecourt system by Court staff.” Ex. V, Luckman Certification at 1 ¶ 2 (D.E. 2224). On November 23, 2020, United States Bankruptcy Judge Gambardella denied Latta's motion to dismiss TLF's proof of claim. Ex. W, 11/23/20 Gambardella Order (D.E. 22-25).
Latta also raised the same arguments again in her appeal of the Underlying Action (“Underlying Appeal”).[6] On July 13, 2020, Latta moved to strike TLF's appeal brief and appendix on the grounds that TLF lacked standing and a valid assignment and ownership, and that Luckman fraudulently prepared and filed the Order and accompanying reasons. See Ex. V, 7/13/20 Cert. ISO Mot. to Strike at 13 ¶¶ 4, 5; 18-19 ¶¶ 24, 26, 29 (D.E. 22-24). Plaintiff also asserted that Luckman's actions amounted to perjury and fraud, see generally id. at 12-21, and claimed that “Judge Koprowski's chambers did not type, nor did he sign the bogus and fraudulent document,” and that it had not “been printed on the Superior Court's letterhead, or mentioned in the original Order as an attachment,” and “has not been approved by the Superior Court, to use as reference or evidence in ANY case.” Id. at13 ¶ 4 (emphasis in original), 16 ¶ 13. TLF responded that the claims had “absolutely no basis in law or in fact,” and that an inquiry to the court would confirm that Judge Koprowski authored the memorandum that accompanied the Order. Ex. V, 7/22/20 TLF Opp. Ltr. at 33-35 (D.E. 22-24). On July 31, 2020, Judge Rothstadt of the New Jersey Superior Court Appellate Division denied Latta's motion to strike the appeal brief. Ex. V, 7/31/20 Rothstadt Order at 42 (D.E. 22-24).
Latta filed the Complaint in the instant matter on September 20, 2021, and an Amended Complaint on November 20, 2021. See Compl.; FAC. The FAC alleges that “[D]efendants Chiesa and Luckman of the Sherman Silverstein law firm” falsified the Order and that “[D]efendants committed fraud by falsifying a Court Order” on behalf of their client, TLF. FAC ¶¶ 13, 17. Latta also alleges that Defendants discriminated and retaliated against her by threatening to sue her if she did not withdraw her counterclaims and defenses in the Underlying Action and her appeal of the Underlying Action. See, e.g, FAC ¶¶ 5, 20, 26, 31, 35. As part of Latta's purported antitrust, fraudulent concealment, and “Rule 23” claims, Plaintiff asserts that Defendants committed fraud by falsifying the Order because TLF lacked standing and did not have a valid assignment or ownership of the tax sale certificate. FAC ¶¶ 43-44. The instant motion to dismiss followed.
In deciding a Rule 12(b)(1) motion for lack of subject-matter jurisdiction, a court must first determine whether the party presents a facial or factual attack because the distinction determines how the pleading is reviewed. A facial attack “contests the sufficiency of the complaint because of a defect on its face,” whereas a factual attack “asserts that the factual underpinnings of the basis for jurisdiction fails to comport with the jurisdictional prerequisites.” Elbeco Inc. v. Nat'l Ret. Fund, 128 F.Supp.3d 849, 854 (E.D. Pa. 2015) (quoting Moore v. Angie's List, Inc., 118 F.Supp.3d 802, 806 (E.D. PA. 2015)). When a party moves to dismiss prior to answering the complaint, as is the case here, the motion is generally considered a facial attack. Constitution Party of Pa. v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). For a facial attack, “the Court must consider the allegations of the complaint as true,” much like a Rule 12(b)(6) motion to dismiss. Bd. of Trs. of Trucking Emps of N. Jersey Welfare Fund, Inc. v. Caliber Auto Transfer, Inc., No. 09-6447, 2010 WL 2521091, at *8 (D.N.J. June 11, 2010) (quoting Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006)). The burden is on the plaintiff to prove the Court has jurisdiction. Id. (citing Petruska, 462 F.3d at 302).
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss when a complaint fails “to state a claim upon which relief can be granted[.]” For a complaint to survive...
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