Opinion
9443/08
7-2-2009
CLIVE CAMPBELL, Plaintiff, v. BARCLAYS BANK PLC, THE NEW JERSEY NETS, FOREST CITY RATNER COMPANIES, BRUCE RATNER, AND SHAWN "JAY-Z"CARTER, Defendants.
Clive Cambell, Brooklyn NY, Plaintiff, pro se. Harold Weinberger, Esq., Kramer Levin Naftalis & Frankel LLP, NY NY, Defendants — Forest City Ratner COs Bruce Ratner NJ Nets, Shawn Carter Jeffrey T. Scott, Esq., Sullivan & Cromwell, LLP, NY NY, Defendant Barclays Bank LLC.
Pro se plaintiff CLIVE CAMPBELL (CAMPBELL) claims that defendant BARCLAYS BANK PLC (BARCLAYS) purchased naming rights for a proposed indoor arena to be named the "Barclays Center" from defendant THE NEW JERSEY NETS (NJ NETS), and that the Barclays Center is to be built, as the centerpiece of the Atlantic Yards development project, by defendant FOREST CITY RATNER COMPANIES (FCRC). Further, plaintiff asserts that: defendant developer BRUCE RATNER (RATNER) is the principal owner of the NJ NETS; and, defendant rapper SHAWN "JAY-Z" CARTER (JAY-Z) is also a member of the NJ NETS ownership. Defendants NJ NETS, FCRC, RATNER, and JAY-Z will be collectively referred to as "FOREST CITY DEFENDANTS."
In two separate motions, one by BARCLAYS and the other by the FOREST CITY DEFENDANTS, all defendants move to dismiss plaintiff's second amended complaint (SAC) with prejudice, pursuant to CPLR Rule 3211 (a) (7), for failure to state a cognizable cause of action and for failure to comply with the pleading requirements of CPLR § 3013 and CPLR Rule 3014.
Background
Plaintiff, on March 20, 2008, filed his original complaint, which asserted a variety of claims against defendants based upon their alleged connection to the importing of black African slaves from the 1600's to the early 1800's across the Atlantic Ocean into British colonies in the West Indies and North America. The North American colonies became the United States of America in 1776. Defendants RATNER and FCRC removed the action on April 14, 2008 to the United States District Court for the Eastern District of New York. Eastern District Judge John Gleeson, in his April 25, 2008 memorandum and order (Campbell v Barclays Bank, et. al., Index No. 08-CV-1529 [JG]), remanded the action back to Kings County Supreme Court, holding at 2, that "Campbell has not asserted any cause of action that would be cognizable in federal court and that might serve as the basis for removal to this court."
Subsequently, FCRC and RATNER moved this Court, on May 6, 2008, for a more definite statement by plaintiff, pursuant to CPLR Rule 3024, because plaintiff's complaint was disorganized, vague, ambiguous, and failed to comply with the basic pleading requirements of CPLR Rules 3013 and 3014. Then, BARCLAYS, NJ NETS and JAY-Z joined this motion. Plaintiff, in response to defendants' motion, moved to amend the original complaint and served an amended verified complaint. Ultimately, plaintiff CAMPBELL, upon consent of all defendants, served on November 3, 2008 the instant SAC. The SAC is a rambling, disjointed, almost 30 page essay dealing with, inter alia: the history of the trans-Atlantic African slave trade; the injustices suffered by African slaves and their descendants; the alleged connection of BARCLAYS to the slave trade; and, the alleged violation by all defendants of international, federal and state laws, including the United Nations Convention on the Prevention and Punishment of Genocide, the United Nations Universal Declaration of Human Rights, the United States Declaration of Independence, and the United States and New York State Constitutions. Plaintiff seeks, SAC at 27, "a trust fund of $ 5 billion to benefit the Back community as a settlement caused by the Felonies, High Crimes at sea, and Misdemeanors" of defendants. Also, the SAC fails to present, as per CPLR Rule 3014, "plain and concise statements in consecutively numbered paragraphs."
Plaintiff claims, SAC at 8, that "the descendants of a victim of human rights abuse should also be able to pursue claims of reparations. That is, the right to reparations should not be extinguished with the death of the victim but can be pursued by his or her heirs." After alleging BARCLAYS' involvement with the former apartheid regime in South Africa and Zimbabwe's dictator Robert Mugabe, plaintiff baldly asserts, SAC at 12, that BARCLAYS is "a perpetual supporter of peddling human flesh." Then, plaintiff discusses BARCLAYS' alleged purchase of naming rights for the NJ NET's proposed Atlantic Yards arena, and speculates, SAC at 14, that "[t]he naming rights deal provoked additional controversy because Barclays has been accused of being associated with the Atlantic Slave trade, the South African apartheid regime, Robert Mugabe and Nazi financing."
Further, plaintiff, SAC at 17-24, contends that defendants engaged in six human rights violations. These six claims are vague and not supported by specific facts.
The first claimed violation is genocide. Plaintiff claims, SAC at 17, that "[t]he defendants by their willful engagement in slavery and furtherance of that enterprise in today's economies have committed a continuing criminal enterprise that have profited them for over 400 years and continue to profit them from the gains of these crimes against a specific people [sic]."
Second, plaintiff asserts that BARCLAYS engaged in the African slave trade including, SAC at 19, the enslavement of "[p]laintiff's ancestors by forcibly transferring children of the group to another group to be diminished as slaves."
Third, there is a claim that BARCLAYS dehumanized African slaves by listing them as "cargo" on ships' manifests. This alleged dehumanization by BARCLAYS is cultural genocide, which deprived the descendants of African slaves of their cultural identity and African languages, so that plaintiff, SAC at 20, "exists today, absent of his ancestral traditions, customs, values and beliefs" and "has been stripped of his manhood and nation hood [sic]."
Fourth, plaintiff claims that BARCLAYS engages in consumer fraud, aided-and-abetted by FOREST CITY DEFENDANTS, who have an unlawful gain from the slave trade of $400 million as compensation for BARCLAYS' purchase of naming rights to the proposed Atlantic Yards arena. Plaintiff asserts his fraud claim based upon, SAC at 22, that "[p]laintiff is a prolific fan and big spending consumer of CDs sold by SHAWN JAY-Z' CARTER" and did not know of JAY-Z's involvement in the conspiracy to defraud.
Fifth, plaintiff asserts that BARCLAYS' involvement in the slave trade is ethnic cleansing and that BARCLAYS' alliance with FOREST CITY DEFENDANTS denied him, SAC at 23, "his birth right to inherit the material wealth of his homeland and to ascent to a position of power and leadership within the borders of his ancestral homeland [sic]."
Plaintiff's sixth human rights violation claim rehashes the first five. It appears to claim that defendants violated plaintiff's natural rights because the naming of the proposed arena for BARCLAYS would be, SAC at 24, "a shameful recognition of the descendants of pirates, kidnappers, murderers and rapist [sic]."
The SAC closes, at 26-27, with an "Appeal to the Ruler of the Earth," seeking numerous forms of relief, including: naming the proposed arena for Harriet Tubman, the heroine of the Underground Railroad, instead of BARCLAYS; compensatory and punitive damages; and, the previously mentioned $5,000,000,000 trust fund for reparations.
Defendants claim that the SAC must be dismissed for its failure to allege any facts sufficient to state a cause of action and its many procedural and substantive deficiencies. Further, defendants claim that plaintiff lacks standing to claim reparations for human rights violations suffered by his purported ancestors. Also, they contend that no civil cause of action exists for slavery or other human rights claims, and it they did, they are time-barred because any injury occurred before 1865, more than 140 years ago. With respect to plaintiff's fraud claims, defendants allege that plaintiff failed to plead them with sufficient particularity, as required by CPLR Rule 3016 (b), and the absence of any valid underlying fraud claims doom plaintiff's purported aiding-and-abetting and conspiracy claims. Finally, defendants assert that the SAC should be dismissed for its failure to comply with the CPLR Rules 3013 and 3104 pleading requirements by failing to provide defendants with basic notice of the actual claims being asserted against them.
The Court is clearly cognizant of its responsibility to liberally read a pro se plaintiff's pleadings and give a pro se plaintiff his day in court. However, it is clear that plaintiff CAMPBELL fails to allege conduct on the part of defendants that can be addressed in an American court. The Court shares plaintiff CAMPBELL's concerns about the evils of the trans-Atlantic African slave trade from the 1600's to the early 1800's and its lingering effects on American society. However, plaintiff has no legal basis, as will be further explained, to pursue his claims in the SAC against defendants.
Plaintiff's SAC is essentially: a narration of the obvious injustices of the trans-Atlantic slave trade and slavery in the British colonies of the New World and pre-1865 United States; vague and unsubstantiated claims connecting that history to BARCLAYS; the use of an unrelated present-day commercial transaction between BARCLAYS and the FOREST CITY DEFENDANTS to involve all defendants in an alleged centuries-old conspiracy to kidnap and enslave Africans and their descendants; and, a compendium of international, federal and state law to attempt to establish a legal framework for plaintiff's grievances. Plaintiff's SAC must be dismissed. "Even after applying the liberal and broad interpretation' to the complaint as is appropriate with a pro se litigant . . . and accepting the allegations as true as well according plaintiff every possible inference, we discern no cognizable legal theory to support any liability against [defendants]." (Planck v SUNY Bd. of Trustees, 18 AD3d 988, 990 [3d Dept 2005]).
Motion to dismiss standards
"When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Milstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon v Martinez, 84 NY2d 83, 87-88 [1994])." (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]). Further, the Court, in Morris v Morris (306 AD2d 449, 451 [2d Dept 2003]), instructed that:
In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a) (7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginsburg, 43 NY2d 268, 275 [1977]. The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]). However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference (see Doria v Masucci, 230 AD2d 764 [2000]).
[Emphasis added]
For a plaintiff to survive a motion to dismiss for failure to state a cause of action, the factual allegations in the claim cannot be "merely conclusory and speculative in nature and not supported by any specific facts." (Residents for a More Beautiful Port Washington, Inc. v. Town of North Hempstead, 153 AD3d 727, 729 [2d Dept 1989]). "The allegations in the complaint cannot be vague and conclusory." (Stoianoff v Gahona, 248 AD2d 525 [2d Dept 1998], app dismissed 92 NY2d 844 [1998], cert denied by Stoianoff v New York Times, 525 US 953 [1998]). (See LoPresti v Massachusetts Mut. Life Ins. Co., 30 AD3d 474 [2d Dept 2006]; Levin v Isayeu, 27 AD3d 425 [2d Dept 2006]; Hart v Scott, 8 AD3d 532 [2d Dept 2004]).
The SAC in the instant action must be dismissed because the "Court need not, and should not, accept legal conclusions, unwarranted inferences, unwarranted deductions, baseless conclusions of law, or sweeping legal conclusions cast in the form of factual allegations. (Ulmann v Norma Kamali, Inc., 207 AD2d 691 [1d Dept 1994]; Mark Hampton, Inc. v Bergreen, 173 AD2d 220 [1d Dept 1991])." (Goode v Charter Oak Fire Ins. Co., 8 Misc 3d 1023[A], at 2 [Sup Ct, Nassau County 2005]).
Plaintiff lacks standing
Plaintiff CAMPBELL must have "standing" to bring this action. "Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress." (Saratoga County Chamber of Commerce, Inc. v Pataki, 100 NY2d 801 812 [2003], cert denied 540 US 1017 [2003]). Professor David Siegel, in NY Prac, § 136, at 232 [4th ed] instructs that:
[i]t is the law's policy to allow only an aggrieved person to bring a lawsuit . . . A want of "standing to sue," in other words, is just another way of saying that this particular plaintiff is not involved in a genuine controversy, and a simple syllogism takes us from there to a "jurisdictional" dismissal: (1) the courts have jurisdiction only 20>over controversies; (2) a plaintiff found to lack "standing" is not involved in a controversy; and (3) the courts therefore have no jurisdiction of the case when such a plaintiff purports to bring it.
"Standing to sue requires an interest in the claim at issue in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigant's request." (Caprer v Nussbaum (36 AD3d 176, 181 [2d Dept 2006]). "An analysis of standing begins with a determination of whether the party seeking relief has sustained an injury (see Society of Plastic Indus. v County of Suffolk, 77 NY2d 761, 762-773 [1991])." (Mahoney v Pataki, 98 NY2d 45, 52 [2002]). "The Court of Appeals has defined the standard by which standing is measured, explaining that a plaintiff, in order to have standing in a particular dispute, must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law." (Caprer v Nussbaum, 36 AD3d at 183). A plaintiff, to have standing, "must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." (Allen v Wright, 468 US 737, 751 [1984]). If a plaintiff lacks standing to sue, the plaintiff may not proceed in the action. (Stark v Goldberg, 297 AD2d 203 [1st Dept 2002]).
Plaintiff CAMPBELL lacks standing to pursue his human rights claims because the alleged injury is to his purported ancestors, not to him. Plaintiff does not allege that he was a direct victim of slavery, genocide or ethnic cleansing. His assertion, SAC at 8, that "the descendants of a victim of human rights abuse should also be able to pursue claims of reparations. That is, the right to reparations should not be extinguished with the death of the victim but can be pursued by his or her heirs," is unavailing. This violates the "general prohibition on one litigant raising the legal rights of another." (Society of Plastic Indus. v County of Suffolk, 77 NY2d at 773).
In a case similar to the instant action (In re African-American Slave Descendants Litigation, 471 F3d 754, 759 [7th Cir 2006]), the Court held that descendants of slaves lack standing to pursue claims based on harm to their ancestors. The Court instructed:
When a person is wronged he can seek redress, and if he wins, his descendants may benefit, but the wrong to the ancestor is not a wrong to the descendants. For if it were, then (problems of proof to one side) statutes of limitations would be toothless. A person whose ancestor had been wronged a thousand years ago could sue on the ground that it was a continuing wrong and he is one of the victims.
Even if assuming plaintiff could assert human rights claims based on harm to his ancestors, plaintiff lacks standing to assert such claims against defendants because any theoretical injury he may have suffered is not "fairly traceable to the defendant's allegedly unlawful conduct." (Allen v Wright, 468 US at 751). Also, plaintiff acknowledges that he does not know the actual identity of his purported slave ancestors. Plaintiff states, SAC at 18, "[u]pon information and belief, plaintiff's ancestors were included in that group [slaves transported from West Africa to Jamaica]. It was foreseeable' and their [BARCLAYS] willful intentions that Plaintiff's African ancestors, enslaved by Barclays Bank, would have descendants to endure into millenniums of cultural and social erosions [sic]."
Further, plaintiff lacks standing to bring his consumer fraud complaints, his fourth alleged human rights violation, against defendants. General Business Law (GBL) § 349, entitled "Deceptive acts and practices unlawful," enacted in 1970, states in subsection (a), "Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful." The Legislature added, in 1980, subsection (h) to GBL § 349, which allows "any person who has been injured by reason of any violation of this section . . . [to] bring an action in his own name to enjoin such unlawful act or practice." To prevail in a consumer fraud action, "[a] plaintiff under section 349 must prove three elements: first, that the challenged act or practice was consumer-oriented; second, that it was misleading in a material way; and third, that the plaintiff suffered injury as a result of the deceptive act." (Stutman v Chemical Bank, 95 NY2d 24, 29 [2000]). In the instant action, the "challenged act or practice" of defendants is the sale of naming rights to the Atlantic Yards arena. This agreement between BARCLAYS and the FOREST CITY DEFENDANTS is a private matter among them, not consumer-oriented, and neither misleading nor deceptive in a material way. Also, plaintiff CAMPBELL has not suffered any legally cognizable injury as a result of BARCLAY's purchasing the naming rights to the proposed Atlantic Yards arena from the FOREST CITY DEFENDANTS.
Further, plaintiff does not allege that he has any relationship whatsoever with BARCLAYS. Plaintiff asserts aiding-and-abetting and conspiracy claims against defendants based upon, SAC at 21-22, alleged misstatements or omissions in connection with defendants naming rights transaction, and alleges that he was defrauded when purchasing CDs recorded by defendant JAY-Z, in that the FOREST CITY DEFENDANTS failed to disclose that BARCLAYS had a historical connection to slavery. Plaintiff lacks standing because he did not suffer "actual injury" from this nondisclosure. (Smith v Chase Manhattan Bank, USA, N.A., 293 AD2d 598, 599 [2d Dept 2002]). Just because plaintiff purchased goods that he might not have otherwise purchased does not constitute actual harm, since such a theory improperly "sets forth deception as both act and injury." (Small v Lorillard Tobacco Co., 94 NY2d 43, 56 [1999]).
Since plaintiff's lacks standing to sue defendants for fraud, his related claims for aiding-and-abetting and/or conspiracy must be dismissed. "New York does not recognize civil conspiracy to commit a tort as an independent cause of action (see Pappas v Passias, 271 AD2d 420, 421 [2d Dept 2000]). Such a claim stands or falls with the underlying tort (see Sokol v Addision, 293 AD2d 600, 601 [2d Dept 2002])." (Ward v City of New York, 15 AD3d 392, 393, [2d Dept 2005]). The aiding-and-abetting fraud claim requires "the existence of a fraud," which is not present in the instant action. (Egnotovich v Katten Muchin Zavis & Rosenman, 18 Misc 3d 1120 (A), at 10 [Sup Ct, New York County 2008]. Further, plaintiff fails to assert any agreement or "substantial participation" between BARCLAYS and the FOREST CITY DEFENDANTS to allegedly defraud plaintiff through misrepresentations concerning slavery. Conspiracy requires "proof of an agreement to engage in a common scheme or plan to deprive plaintiff of his property." (Troung v AT & T, 243 AD2d 278 [1d Dept 1997].
Plaintiff's consumer fraud claims are not alleged with sufficient particularity
Even if pro se plaintiff CAMPBELL had standing to sue defendants in the instant action, his fourth human rights claim must be dismissed because it fails to provide any specific details concerning the allegedly fraudulent transactions or misrepresentations or conspiracy by defendants. Plaintiff baldly asserts, without any details, that: BARCLAYS "continues to engage in acts designed to cover up their role in the slave trade" [SAC at 20]; BARCLAYS "concealments, misrepresentations (lies) omissions and lack of full disclosure of Barclays Bank involvement in the Trans Atlantic Slave Trade to the Consumers of New York, of which this Plaintiff is one . . . amounts to FRAUD/ CONSUMER FRAUD [sic]" [SAC at 21]; the $400,000,000 naming rights transaction between defendants "is articulated and disputed as a direct connection from the ancestral slave parentage of Plaintiff and the destruction of his national identity" [SAC at 22]; and, the FOREST CITY DEFENDANTS "have committed FRAUD and CONSUMER FRAUD by their lies and omissions and lack of full disclosure in entering into a CONSPIRACY with BARCLAYS BANK and creating a COMMERCIAL ALLIANCE that would give $1 million a year to an alleged youth group in Brooklyn, New York State [sic]" [SAC at 22-23].
"The elements of fraud are narrowly defined, requiring proof by clear and convincing evidence (cf., Vermeer Owners v Guterman, 78 NY2d 1114, 1116 [1991])." (Gaidon v Guardian Life Ins. Co. of America, 94 NY2d 330, 349-350 [1999]). Bare allegations of fraud, without details, such as in the instant SAC, are insufficient to sustain a fraud action. (Kline v Taukpoint Realty Corp., 302 AD2d 433 [2d Dept 2003]). The Court, in Giurdanella v Giurdanella (226 AD2d 342, 343 [2d Dept 1996], held:
to establish a prima facie case of fraud, the plaintiff must establish (1) that the defendant made material representations that were false, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant's representations, and (4) that the plaintiff was injured as a result of the defendant's representation.
(See Kerusa Co., LLC v W10Z/515 Real Estate Ltd. Partnership, 12 NY3d 236 [2009]; Small v Lorillard Tobacco Co., Inc., supra; Channel Master Corp. v Aluminum Limited Sales, Inc., 4 NY2d 403 [1958]; Smith v Ameriquest Mortg. Corp., 60 AD3d 1037 [2d Dept 2009]; Cash v Titan Financial Services, Inc. 58 AD3d 785 [2d Dept 2009]; Shovak v Long Island Commercial Bank, 50 AD3d 1118 [2d Dept 2008]; Sellinger Enterprises, Inc. v Cassuto, 50 AD3d 766 [2d Dept 2008]; Williams v Eason, 49 AD3d 866 [2d Dept 2008]; McMorrow v Dime Sav. Bank of Williamsburg, 48 AD3d 646, [2d Dept 2008].
CPLR Rule 3016 (b) requires that in a fraud cause of action "the circumstances constituting the wrong shall be stated in detail." Not only must plaintiff plead the essential elements of fraud, but plaintiff must support each of the elements of fraud with specific factual details from which fraud may be inferred. (See Barclay Arms, Inc. v Barclay Arms Associates, 74 NY2d 644 [1989]; Cohen v Houseconnect Realty Corp., 289 AD2d 277 [2d Dept 2001]). The Court of Appeals, in Pludeman v Northern Leasing Systems, Inc. (10 NY3d 486 [2008]), held:
Critical to a fraud claim is that a complaint allege the basic facts to establish the elements of the cause of action. Although under section 3016 (b) the complaint must sufficiently detail the allegedly fraudulent conduct, that requirement should not be confused with unassailable proof of fraud. Necessarily, then, section 3016 (b) may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct.
Plaintiff's lack of specificity in the SAC does not meet the Pludeman fraud criteria of presenting facts that "are sufficient to permit a reasonable inference of the alleged conduct." Mere conclusory statements alleging the wrong in the pleadings are insufficient. (McGovern v Nassau County Dept. of Social Services, 60 AD3d 1016 [2d Dept 2009]; Sargiss v Magarelli, 50 AD3d 1117 [2d Dept 2008]; Dumas v Firoito, 13 AD3d 332 [2d Dept 2004]; Sforza v Health Ins. Plan of Greater New York, 210 AD2d 214, 215 [2d Dept 1994]).
Plaintiff's related claims that the FOREST CITY DEFENDANTS aided and abetted BARCLAYS and conspired to defraud him must also be dismissed. As discussed above, "New York does not recognize an independent cause of action for civil conspiracy to commit a tort." (Roche v Claverack Co-op Ins. Co., 59 AD3d 914 [3d Dept 2009]). "[A] mere conspiracy to commit a fraud is never of itself a cause of action." (Brackett v Griswold, 112 NY 454, 467 [1889]). However, "[a]llegations of conspiracy are permitted only to connect the actions of separate defendants with an otherwise actionable tort." (Alexander & Alexander of New York, Inc. v Fritzen, 68 NY2d 968, 969 [1986]). Plaintiff, in the instant complaint, fails to connect the actions of defendants "with an otherwise actionable tort." (See Cash v Titan Financial Services, Inc., supra; Crispino v Greenpoint Mortg. Corp., 2 AD3d 478 [2d Dept 2003]; Pappas v Passias, supra; SRW Associates v Bellport Beach Property Owners, 129 AD2d 328 [2d Dept 1987]).
No private right of action for Plaintiff's human rights claims
Further, even if pro se plaintiff CAMPBELL had standing to sue, his first, second, third, fifth and sixth human rights claims must be dismissed for failure to state a cause of action. Plaintiff's human rights claims are premised primarily [SAC at 11, 23-24] on Article II of the United Nations Convention on the Prevention and Punishment of Genocide [Genocide Convention]. Plaintiff also alleges, SAC at 15, violations by defendants of "the United States Declaration of Independence, the United States Constitution, the First, Ninth and Fourteenth Amendments to the United States Constitution, the United Nations Declaration of Human Rights, . . . the International Law of Maritime Commerce, the New York State Constitution and New York State Rules of Civil Procedure and the common law." Plaintiff fails to articulate which sections of the New York State Constitution and the CPLR were allegedly violated by defendants, Further, with respect to defendants' alleged violations of common law, plaintiff fails to cite even one case.
The Court does not recognize the "International Law of Maritime Commerce" as a specific statute. Presumably, plaintiff believes that a law which might redress his grievances would fall into this general category because the trans-Atlantic slave trade constituted international commerce and African slaves were transported on the high seas by ships. However, this does not state a cause of action against any of the defendants.
Congress enacted the Proxmire Act in 1988 (Pub L 100-606, codified at 18 USC § 1091 et seq.) to implement the Genocide Convention. However, there is no private right of action to enforce the Genocide Convention. 18 USC § 1091 et seq. is a criminal statute and 18 USC § 1092 states that "[n]othing in this chapter shall be construed as precluding the application of State or local laws to the conduct proscribed by this chapter, nor shall anything in this chapter be construed as creating any substantive or procedural right enforceable by law by any party in any proceeding [Emphasis added]."
Courts have rejected civil genocide claims premised on the Proxmire Act. In Nicolescu v Faith & Freedom Coalition (21 F3d 1114 [Table] [9th Cir. 1994]), pro se plaintiffs sued various defendants, including the Romanian Communist Party, Pope John Paul II, the Church of Jesus Christ of Latter-day Saints, the Roman Catholic Church, the Los Angeles Police Department and the publicist Howard Rubenstein for numerous alleged illegal acts. The Court held:
The Nicolescus' third amended "complaint for genocide" is 35 pages long, and lists over 50 defendants . . . The complaint appears to allege that defendants conspired together to perpetrate the evil of communism and to commit genocide against the Nicolescus. For the most part, however, the complaint is rambling and unintelligible.
More important, the complaint fails to show that the Nicolescus are entitled to relief. See . . . 18 U.S.C. § 1092 (no civil cause of action under Genocide Act). Accordingly . . . the district court properly dismissed the Nicolescus' third amended complaint with prejudice.
(See Khulumani v Barclay National Bank, Ltd., 504 F3d 254, 284 [2d Cir 2007]; Only v Ascent Media Group, LLC, 2006 WL 2865492, at 6 [US Dist Ct, D NJ 2006]; Hassain v U.S. E.P.A., 2001 WL 630678, at 2 [US Dist Ct, ND Ill 2001]; Manybeads v U.S., 730 F Supp 1515, 1521 [US Dist Ct, Ariz 1989]; Vaughn v Hvaas, No. C4-99-2184, 2000 WL 730761 [Minn App 2000]).
The United Nations Declaration of Human Rights "does not of its own force impose obligations as a matter international law" and it is not a treaty or international agreement . . . impos[ing] legal obligations.'" (Sosa v Alvarez-Machain, 542 US 692, 734-735 [2004]). Therefore, the United Nations Declaration of Human Rights does not "create private rights of action in the domestic courts of the signatory countries, in the absence of further domestic legislative action." (Huynh Thi Anh v Levi, 586 F2d 625, 629 [6th Cir 1978]).
The United States Declaration of Independence is only a statement of principles. It is not a statute creating any private right of action. "While the Declaration of Independence states that all men are endowed certain unalienable rights including Life, Liberty and the pursuit of Happiness,' Declaration of Independence, ¶ 1 . . . does not grant rights that may be pursued through the judicial system." (Coffey v U.S., 939 F Supp 185, 191 [US Dist Ct., ED NY 1996].
Plaintiff's purported claims for violations of the United States and New York Constitutions are all based upon allegations of private conduct by private actors. As a matter of law this cannot be the basis for constitutional violation claims. Judge Gleeson, in his previously cited memorandum and order of April 25, 2008, which remanded the instant action from the Eastern District back to Kings County Supreme Court, held at 2-3:
Campbell has not asserted any cause of action that would be cognizable in federal court and might serve as the basis for removal to this court. Claims for violation or deprivation of constitutional rights may be brought pursuant to 42 U.S.C. § 1983 (§ 1983). However, in order to maintain an action pursuant to § 1983, a plaintiff must allege that "the conduct complained of [was] committed by a person acting under color of state law." Pitchell v, Callan, 13 F.3d 545, 547 (2d Cir 1994) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986) (emphasis added). As the Supreme Court has held, "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful."
American Mfrs. Mut. Ins. Co. v Sullivan, 526 U.S. 40, 50 (quotations omitted). In this case, the defendants are all private individuals or entities, not "state actors" who would be amendable to § 1983.
Accordingly, there is no basis for asserting constitutional claims against these defendants pursuant to § 1983.
New York Courts have similarly held that the New York State Constitution "protect[s] the individual against action by governmental authorities, not by private persons." (SHAD Alliance v Smith Haven Mall, 66 NY2d 496, 502 [1985]). New York State's "constitutional protections apply only where there is State action.'" (Bruno v Pembroke Mangement, Inc., 212 AD2d 314, 319 [2d Dept 1995]). The actions of BARCLAYS and the FOREST CITY DEFENDANTS in the instant action is not "state action."
Plaintiff's human rights claims are time barred
CPLR § 213 (1) provides a statute of limitations of six years for "an action for which no limitation is specifically prescribed by law." Since there is no private right of action for any of plaintiff's human rights claims, and thus "no limitation is specifically prescribed by law," the appropriate statute of limitations for such claims is six years. Thus, plaintiff's slavery-related human rights claims are time barred. Limitations on actions exist as a compromise between plaintiff's interest in "a reasonable time to present claims" and the interest of defendants and courts in "having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise." (United States v Kubrick, 444 US 111, 117 [1979]). "Statutes of Limitation represent the balance struck by the Legislature between the competing concerns of plaintiffs in being afforded a reasonable time to bring their claims and defendants in not having to resist stale claims (see, United States v Kubrick, 444 US 111, 117)." (Depczynski v Adsco/Farrar & Trefts, 84 NY2d 593, 596-597 [1994]).
Plaintiff suggests, SAC at 19, that BARCLAY's "vicious removal of Plaintiff's ancestors from their ethnic and national group serves as a CONTINUOUS INJURY.' Those illicit actions have resulted in the destruction of Plaintiff's national and ethnic composition [sic]." The "continuous injury" doctrine is used to extend the statute of limitations in certain specific cases, such as divorce by imprisonment, nuisance or trespass, where there is a series of continuing wrongs that are said to create separate and successive causes of action. (Covington v Walker, 3 NY3d 287 [2004]; Blooomingdale's Inc. v New York City Transit Authority, 52 AD3d 120 [1d Dept 2008]). The "continuous injury" doctrine does not apply to situations, such as the instant action, in which it is undisputed that defendants are not presently engaged in the now illegal and defunct trans-Atlantic slave trade, even if they were many years ago. "Continuous injury" "may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct." (Selkirk v State, 249 AD2d 818, 819 [3d Dept 1998])."
The Court, in In re African-American Slave Descendants Litigation (471 F3d at 762), instructed, that "in any event, suits complaining about injuries that occurred more than a century and a half ago have been barred for a long time by the applicable state statutes of limitations. It is true that tolling doctrines can extend the time to sue well beyond the period of limitations-but not to a century and more beyond."
Plaintiff's SAC fails to comply with CPLR pleading requirements
In addition to all of the above grounds for dismissal of plaintiff's SAC, the SAC must be dismissed for its failure to satisfy the pleading requirements of CPLR §3013 and Rule 3014. CPLR § 3013 requires statements in a pleading to be "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." CPLR Rule 3014 imposes additional pleading requirements that "[e]very pleading shall consist of plain and concise statements in consecutively numbered paragraphs. Each paragraph shall contain, as far as practicable, a single allegation . . . Separate causes of action or defenses shall be separately stated and numbered and may be stated regardless of consistency."
In Sibersky v New York City (270 AD2d 209 [1d Dept 2000], the Court dismissed an amended petition for its "complete failure to follow the dictates of CPLR 3013 or 3014." The Sibersky complaint consisted of "seven pages of single-spaced, unnumbered paragraphs, the import of which is unascertainable," and the Court held that "[p]leadings that are not particular enough to provide the court and the parties with notice of the transaction or occurrences to be proved must be dismissed." Complaints that do not meet the pleading requirements of CPLR § 3013 and Rule 3014 will be dismissed if "devoid of specific factual allegations" and do not "indicate the material elements of a claim and how they would apply to the case." (Megna v Becton Dickinson & Co., 215 AD2d 542 [2d Dept 1995]). In Peri v State (66 AD2d 949 [3d Dept 1979]), affd 48 NY2d 734 [1979]), a pro se plaintiff's complaint was dismissed for failure to comply with CPLR § 3013. The Court instructed that "[a]t a minimum, a valid complaint must include all material elements of the cause of action."
Although plaintiff's SAC alleges human rights violations, his legal basis is excessively broad, claiming, SAC at 15, that "Defendants violated Plaintiff's rights under all the universal law of HUMANITY and the Christian Bible from which this country mortared is foundation [sic]." Plaintiff CAMPBELL'S SAC fails to present his pleadings in a manner that is "sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action [CPLR § 3013]" and organized in "plain and concise statements in consecutively numbered paragraphs [CPLR Rule 3014]." "While a refined and attenuated analysis might arguably spell out a shadow of a cause of action, neither the defendants nor the trial court should be subject to the difficulties." (Kent v Truman, 9 AD2d 649 [1d Dept 1959]). (See Geist v Rolls Royce Limited, 18 AD2d 631 [1d Dept 1962]; Safer Beef Co., Inc. v Northern Boneless Beef, Inc., 15 AD2d 479 [1d Dept 1961]).
Additionally, plaintiff's CAMPBELL's rambling, almost 30 page SAC, with 64 pages of exhibits ranging from internet articles and plaintiff's birth certificate to irrelevant historical information, and its six overlapping alleged human rights violations and its failure to cite any specific statute or case, make it difficult for defendants to decipher plaintiff's claims in a morass of alleged facts. In a case in which "the amended complaint is prolix, confusing, and difficult to answer" and the complaint contains "a confusing succession of discrete facts, conclusions, comments . . . and considerable other subsidiary evidentiary matter whose relevance to a particular cause of action is frequently obscure . . . Defendants should not be required to answer such a jumble." (Rapaport v Diamond Dealers, Club, Inc., 95 AD2d 743, 744 [1d Dept 1983]). (See Etu v Cumberland Farms, Inc., 148 AD2d 821, 824 [3d Dept 1989]).
Conclusion
Accordingly, it is
ORDERED that all of the motions of defendants, BARCLAYS BANK PLC, THE NEW JERSEY NETS, FOREST CITY RATNER COMPANIES, BRUCE RATNER, and SHAWN "JAY-Z"CARTER, to dismiss plaintiff CLIVE CAMPBELL's second amended complaint with prejudice, pursuant to CPLR Rule 3211 (a) (7), for failure to state a cause of action, and for failure to comply with the pleading requirements of CPLR § 3013 and CPLR Rule 3014 is granted in its entirety.
This constitutes the Decision and Order of the Court.