Opinion
1:19-cv-11097 (GBD) (SDA)
12-06-2021
David Eric Miller, as Administrator of the Estate of David Humphreys Miller and as Distributee of the Estate of David Humphreys Miller, Plaintiff, v. Brad Hamlett et al., Defendants.
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is a motion by Defendants Brad Hamlett, The Wrangler Gallery, Jane Ruyan Miller Trust, The Solomon Family Trust and The Estate Of Sandra L. Solomon (collectively, “Defendants”), pursuant to Federal Rule of Civil Procedure 12(c), to dismiss the Complaint of Plaintiff David Eric Miller (“Plaintiff” or “Miller”). (Defs.' 9/20/21 Mot., ECF No. 50.) For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED.
BACKGROUND
On December 4, 2019, the Complaint in this action was filed. (See Compl., ECF No. 1.) The ECF docket reflects that it was filed by attorney of record, Josias Carrion Rivera. Indeed, Attorney Carrion Rivera signed his name to Plaintiff's Rule 7.1 Statement that was filed on December 4, 2019. (See Pl.'s Rule 7.1 Stmt., ECF No. 3.) Attorney Carrion Rivera also signed his name to the Civil Cover Sheet that was filed on January 10, 2020. (See Civil Cover Sheet, ECF No. 11.)
The ECF docket reflects that Attorney Carrion Rivera was employed at Connors and Sullivan, the same law firm that submitted the memorandum in opposition to the pending motion to dismiss. (See Pl.'s Opp. Mem., ECF No. 53, at 17.)
A Rule 7.1 Statement was not required since Plaintiff is not a corporate entity. See Local Civil Rule 7.1.
The Complaint, which is dated October 5, 2019, consists of lists of the parties (see Compl. at 2-3); a single, long paragraph labeled “FACTS” (see id. at 4); three paragraphs under the label “INJURIES” (see id. at 4-5); a single paragraph labeled “RELIEF” (see id. at 5); a certification by Plaintiff (see id. at 5-6); and sixteen exhibits. (See Compl. Exhibits, ECF Nos. 1-1 to 1-16.) The exhibits to the Complaint consist of documents relating to proceedings in the Superior Court of California, County of San Diego, dating back to 2006; Plaintiff's birth certificate; certain death certificates; and certain pages from the Internet. (See id.)
The Complaint alleges that, on March 18, 2019, Plaintiff was appointed in California as the Administrator of the Estate of Decedent David Humphreys Miller, who died in 1992. (See Compl. at 4.) The Complaint further alleges that Defendants (located in Montana and California) have been selling “some of [Decedent's] artwork collection . . . to different people all across the United States.” (See id. at 2-4.) The “RELIEF” paragraph sets forth Plaintiff's “position, ” as follows: “It is the position of the Plaintiff that the artwork, book royalties and tangible belongings of Decedent belong[] to the Estate of David Humphreys Miller unless chain of title can be adequately explained.” (See Compl. at 5.) The Complaint does not purport to state any legal claims or causes of action. (See generally Compl.)
The Complaint was served by Plaintiff in January and February 2020. (See Affs. of Service, ECF Nos. 27-29.) On October 29, 2020, counsel for Defendants entered a notice of appearance. (See Not., ECF No. 34.) On December 10, 2020, Defendants filed their Answer in which they assert, among other things, that the Complaint fails to state a claim and is time-barred. (See Answer, ECF No. 35, at 3.)
On January 26, 2021, I entered a Scheduling Order based on the parties' proposed case management plan. (See Scheduling Order, ECF No. 43.) The Scheduling Order stated that “[a]ny amended pleading shall be filed by May 14, 2021.” (See id. ¶ 2.) It also set the deadline for fact discovery as June 30, 2021 and the deadline for expert discovery as July 30, 2021. (See id. ¶¶ 3-4.) No extension of any of these deadlines was sought, no amendment to the Complaint was made and discovery is now closed.
On September 20, 2021, Defendants filed the motion for judgment on the pleadings that is now before the Court. (See Defs.' 9/20/21 Mot.) On October 11, 2021, Plaintiff filed his opposition to the motion. (See Pl.'s Opp. Mem., ECF No. 53.) On October 18, 2021, Defendants filed their reply memorandum. (See Reply, ECF No. 54.) On December 2, 2021, Judge Daniels referred Defendants' motion to me for a report and recommendation. (See Am. Order of Ref., ECF No. 55.)
LEGAL STANDARDS
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (“Under the Rules' liberal pleading standards, a plaintiff must disclose sufficient information to permit the defendant ‘to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery.'” (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). “Fair notice [is] ‘that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.'” Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)).
The legal standards applicable to a Rule 12(c) motion are the same as those applied to a Rule 12(b)(6) motion to dismiss. See Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
DISCUSSION
I. The Complaint Does Not State A Claim And Should Be Dismissed
The Complaint - both literally and as a matter of law - does not set forth any legal claims. It only pleads facts, injuries and the relief sought. Remarkably absent from the Complaint is an identification of any legal claims being pursued, let alone the elements of any such claims. The Court need not engage in any analysis as to whether the claims pled are plausible, since there actually are no claims pled at all.
In opposition to Defendants' motion, Plaintiff argues that, in his “original pro se complaint, ” he sufficiently pled claims for “fraud/mistake, ” “unjust enrichment, ” “conversion, ” “constructive trust” and “replevin.” (See Pl.'s Opp. Mem. at 8.) Yet, the Complaint nowhere even alludes to these words or terms. Moreover, Plaintiff is represented by counsel and his Complaint was filed by an attorney. (See Compl.) In any event, even if the Complaint were construed under the more liberal standard applicable to pro se pleadings, it does not state any legal claim, as required by Rule 8(a). See Crichlow v. Annucci, No. 18-CV-03222 (PMH), 2021 WL 3146241, at *2 (S.D.N.Y. July 23, 2021) (“All litigants, even pro se litigants, must comply with Rule 8(a).” (citation and footnote omitted)).
The Complaint plainly is insufficient on its face since it does not plausibly or otherwise set forth a claim for relief. Accordingly, the Complaint should be dismissed.
II. Plaintiff Should Be Granted Leave To File a Motion To Amend Pursuant To Rule 16(b)
Plaintiff's opposition memorandum appears to seek leave to amend. (See Pl.'s Opp. Mem. at 7.) However, Plaintiff has not even attempted to articulate how he has met the standards for seeking leave to amend at this stage of the proceedings.
In his opposition memorandum Plaintiff states that, “before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of in forma pauperis statute and prisoner litigation screening statute, the court must grant leave to amend his complaint unless amendment would be inequitable or futile.” (Pl.'s Opp. Mem. at 7.) It is unclear why Plaintiff references the “in forma pauperis statute” and the “prisoner litigation screening statute, ” since Plaintiff did not request and was not granted in forma pauperis status and he is not a prisoner. Nonetheless, the Court construes Plaintiff's opposition memorandum as seeking leave to amend.
This Court previously has set forth the standards for seeking to amend where, as here, the deadline in the scheduling order for amending pleadings has passed:
District courts have broad discretion in determining whether to grant leave to amend. Leave to amend should be freely granted when justice so requires. Where a scheduling order has been entered, the lenient standard under Rule 15(a) must be balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be modified except upon a showing of good cause. A district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause.Rouviere v. DePuy Orthopaedics, Inc., No. 18-CV-04814 (LJL) (SDA), 2020 WL 3865614, at *2 (S.D.N.Y. July 7, 2020) (citations omitted) (cleaned up).
If Judge Daniels adopts my recommendation to dismiss the Complaint, I further recommend that Plaintiff be granted leave to file a formal motion to amend setting forth good cause to make his amendment at this late stage of the proceedings-i.e., where discovery is closed and the case is trial ready.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss be GRANTED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).