Mortimer v. Grodsky

Background

Kim Mortimer filed this self-represented action after paying the filing fee. She alleged that Scott Grodsky, 2386 Hempstead Incorporated, attorneys, law firms, lenders, consultants, title and abstract companies, other individuals, the City of New York, unidentified NYPD officers, and unidentified individuals participated in a “Fraud for Profit Scheme.” She claimed that defendants used the mortgage-lending and court systems to obtain money and property through false representations, causing her to lose her home and business. The complaint described transactions that appeared to have occurred from 2014 through 2016 involving a Manhattan property owned by 60 91st Street Corporation.

Mortimer asserted claims under New York General Business Law § 349, the implied covenant of good faith and fair dealing, fraud and misrepresentation, unjust enrichment, fraudulent inducement, punitive damages, substantive and procedural due process, and federal statutes including 42 U.S.C. §§ 1983, 1985, and 1988 and 18 U.S.C. §§ 1343 and 1349. She sought compensatory and punitive damages.

Federal civil-rights claims

A claim under 42 U.S.C. § 1983 requires a constitutional or federal-rights violation by someone acting under color of state law—that is, using governmental authority or acting as a state actor. The court held that Mortimer did not allege facts showing that the private attorneys, law firms, financial professionals, individuals, or entities acted under color of state law. It therefore dismissed the § 1983 claims against those private defendants for failure to state a claim.

The court treated the City and the unidentified NYPD officers as state actors for purposes of § 1983, but held that Mortimer did not allege facts showing that they violated her federal rights. Her allegation concerning those defendants was that she reported the alleged fraud to government agencies, including an NYPD precinct, and received no response. The court held that there is generally no constitutional right to government assistance or to an investigation by government officials. Because the court could not say that amendment would be futile, it granted leave to amend the federal claims against the City and the unidentified NYPD officers.

Other federal claims

The court dismissed the claims under 42 U.S.C. § 1985 because Mortimer’s allegations were vague and conclusory and did not suggest that any conspiracy was motivated by racial or other class-based discriminatory animus. It dismissed the claims under § 1988 because that statute permits certain prevailing parties to recover attorney fees, and self-represented litigants are not entitled to such fees. It also dismissed the claims under 18 U.S.C. §§ 1343 and 1349 because those are federal criminal statutes, and a private plaintiff cannot use them to initiate or compel a criminal prosecution.

State-law claims and prior action

The court stated that it may decline supplemental jurisdiction—the federal court’s authority to hear related state-law claims—after dismissing all claims within its original federal jurisdiction. It said that if Mortimer failed to state a federal claim in an amended complaint, the state-law claims would be dismissed without prejudice to pursuing them in an appropriate state court.

The court also discussed Mortimer’s earlier related proceeding, which involved many of the same defendants and transactions. It stated that many claims against defendants named in that earlier case would likely be barred by claim preclusion, also known as res judicata, if the current complaint otherwise avoided the defects identified in the order. Claim preclusion generally prevents a party from bringing claims that were or could have been raised in an earlier case involving the same parties and a judgment on the merits.

Disposition

The court dismissed the complaint for failure to state a claim on which relief may be granted. It granted Mortimer leave to file an amended complaint asserting federal claims against the City and the unidentified NYPD officers, and instructed her not to reassert federal claims that had already been dismissed. The amended complaint was to replace, rather than supplement, the original complaint and had to include the facts and claims Mortimer wanted the court to consider.

The order states that Mortimer was granted 30 days’ leave to amend. It separately directs her to submit the amended complaint within 60 days of the order and states that judgment may be entered if she does not comply and cannot show good cause. The court directed the Clerk to keep the matter open until judgment and denied fee-free appeal status after certifying that an appeal would not be taken in good faith.