Mortimer v. Grodsky

Background

Kim Mortimer, proceeding without a lawyer, sued Scott Grodsky and other defendants under several federal criminal statutes, 42 U.S.C. §§ 1983 and 1985, and state law. She sought damages and asked the court to order the defendants’ criminal prosecution. She also requested orders concerning the sale or auction of property at 60 West 91st Street, foreclosure calculations, Bankruptcy Court sanctions, the mortgage and note, and the Corporation’s bankruptcy proceedings.

Mortimer alleged that she was the sole shareholder of 60 91st Street Corporation, that the Corporation owned the property, and that she guaranteed its mortgage. She alleged that defendants defrauded her during an attempted mortgage refinancing. After the Corporation defaulted, a state court ordered foreclosure and sale, and the Corporation’s appeal was pending. The Corporation later filed a bankruptcy case, and Heidi Sorvino was appointed trustee. Mortimer alleged that Sorvino and Grodsky entered the property, that Grodsky hired a locksmith to open vacant apartments, and that the Bankruptcy Court later held her in contempt and imposed sanctions. The opinion also notes that appeals involving the Bankruptcy Court’s actions were pending.

Court’s analysis

The court had previously allowed Mortimer to proceed without prepaying filing fees. It reviewed the complaint under the statute governing such cases, which requires dismissal of claims that are frivolous, fail to state a claim, seek money from an immune defendant, or fall outside the court’s subject-matter jurisdiction. The court also applied the rule requiring a complaint to provide enough factual detail to make a claim plausible, while construing a self-represented litigant’s allegations liberally.

Claims brought for the Corporation

The court held that a person who is not an attorney cannot represent a corporation in federal court, even when that person is the corporation’s sole shareholder. It therefore dismissed without prejudice Mortimer’s claims brought on behalf of 60 91st Street Corporation, including claims seeking to stop or affect the property sale, recalculate foreclosure amounts, alter or rescind the loan documents, stay the Corporation’s bankruptcy proceedings, and obtain relief against Sorvino. The court also explained that Mortimer’s claims against Sorvino concerned alleged injuries to the Corporation, which she could not assert herself.

Challenge to Bankruptcy Court sanctions

The court dismissed without prejudice Mortimer’s claims challenging the sanctions imposed by the Bankruptcy Court because those claims duplicated her pending appeal of the sanctions order in another proceeding in the same court. The dismissal was stated to be without prejudice to that pending appeal.

Requests for criminal prosecution

The court dismissed Mortimer’s requests for criminal prosecution because a private person cannot prosecute a federal criminal case or require federal prosecutors to bring one. The court treated these claims as failing to state a claim for relief.

Claims under 42 U.S.C. § 1983

Section 1983 provides a cause of action for violating federal rights under color of state law, meaning through conduct fairly attributable to state government. The court held that Mortimer did not allege facts showing that the private attorneys, law firms, or other private parties acted under state law. It therefore dismissed her § 1983 claims against those defendants for failure to state a claim.

The court noted that Sorvino, as a trustee appointed by a federal Bankruptcy Court, acted under federal rather than state law. Even if Mortimer’s claims against Sorvino were understood as claims under the federal constitutional remedy recognized in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the alleged injuries were to the Corporation rather than Mortimer personally. The court therefore dismissed those claims without prejudice because Mortimer could not represent the Corporation.

Claims under 42 U.S.C. § 1985(3)

The court understood the complaint to assert a conspiracy claim under § 1985(3). It dismissed that claim because Mortimer’s allegations were vague and lacked facts suggesting that the alleged conspiracy was motivated by racial or other class-based discriminatory hostility.

State-law claims and amendment

After dismissing the federal claims over which it had original jurisdiction, the court declined to exercise supplemental jurisdiction—the authority to hear related state-law claims—over Mortimer’s fraud and other state-law claims. The court also declined to allow an amended complaint because it concluded that the defects could not be cured by amendment.

Disposition

The court dismissed the action. It dismissed without prejudice the claims Mortimer brought on behalf of 60 91st Street Corporation, including her claims against Sorvino. It dismissed without prejudice the claims challenging the Bankruptcy Court sanctions, subject to the pending appeal. It dismissed the remaining federal-law claims for failure to state a claim and declined to consider the state-law claims.