Opinion · Court of Appeals for the Second Circuit

Fitzgerald v. First East Seventh Street Tenants Corp.

Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362 (2d Cir. 2000)

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
2000-07-27
Topic
general

recognizing that district courts have power to sua sponte dismiss complaints “in order to preserve scarce judicial resources” | holding that a district court may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee | holding that a district court retains inherent authority to dismiss a frivolous complaint sua sponte "even when the plaintiff has paid the required filing fee" | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that “district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee” | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | recognizing that “district courts may dismiss a frivolous complaint sua sponte even when the plaintiff has paid the required filing fee” | recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee | recognizing that district court has power to sua sponte dismiss pro se complaint based on frivolousness notwithstanding fact that plaintiff has paid statutory filing fee | holding that a district court may sua sponte dismi

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FITZGERALD v. FIRST EAST SEVENTH ST. TENANTS,221 F.3d 362(2nd Cir. 2000)
Thomas Fitzgerald,Plaintiff-Appellant,v. First East
Seventh Street Tenants Corp., Allen Brill, Kelly Gigante,
Dianne Gasworth, Stephen Roxburgh, Willie Viera, Civil Court
of the City of New York, New York City Housing Preservation
Dep't, Division of Housing Community Renewal, and New York
City Buildings Dep't,Defendants-Appellees.
No. 99-9160.
United States Court of Appeals, Second Circuit.
Argued June 7, 2000.
Decided July 27, 2000.
Appeal from a judgment of the United States District Court for the Southern District of New York (John F. Keenan,Judge), dismissingsua sponteplaintiff'spro seaction under42 U.S.C. § 1983, the Racketeer Influenced Corrupt Organizations Act,18 U.S.C. § 1961etseq., and various other state and federal provisions. We conclude that the District Court possessed the authority to dismiss the actionsua sponte, notwithstanding the fact that plaintiff had paid the required filing fee when he initiated the action.

Affirmed.
Thomas Fitzgerald,pro se, New York, NY.

Allen H. Brill, Brill Meisel, New York, NY,forDefendants-Appellees First East Seventh Street Tenants Corp.,Allen Brill, Kelly Gigante, Stephen Roxburgh, and Willie Viera.

Alan G. Krams, Assistant Corporation Counsel, City of New York Law Dep't, New York, NY,for the City Defendants-Appellees.

Charles F. Sanders, Assistant Attorney General of the State of New York (Eliot Spitzer, Attorney General; Edward Johnson, Deputy Solicitor General; Michael S. Belohlavek, Assistant Solicitor General,on the brief), New York, NY,for the StateDefendants-Appellees.
Before: WALKER and CABRANES,Circuit Judges,and HODGES, DistrictJudge.fn*
PER CURIAM:
Plaintiff Thomas Fitzgerald initiated thispro seaction on July 29, 1999, remitting the required $150 fee upon filing his complaint. Fitzgerald contends that defendants "began a speculative venture with the intent to illegally function as anPage 363apartment coop[e]rative." Defendants allegedly "dec[ei]ved plaintiff by issuing him a `proprietary lease' and a share certificate for 4 shares," and then, after Fitzgerald had discovered the plan and refused to cooperate, "through a series of individual and separate acts involving fraud, mail fraud, fraud on the court, extortion, bribery, [and] abuse of process, conspired to deny plaintiff his property rights and his due process rights, and to coerce him into accepting membership in an illegal apartment cooperative or to evict him from the building." The complaint includes,inter alia, claims under42 U.S.C. § 1983and the Racketeer Influenced Corrupt Organizations Act ("RICO"),18 U.S.C. § 1961et seq.

Defendants neither answered nor formally moved to dismiss the complaint. Instead, they sent a letter to the District Court (John F. Keenan,Judge) explaining that "each of the allegations and claims set forth in the complaint w[as] contained in previous actions filed in this Court by Mr. Fitzgerald." Defendants therefore requested that "the Court dismiss the instant actionsuasponteagainst all defendants." In an Opinion and Order dated August 31, 1999, the Court granted this request.

The District Court noted at the outset that the instant action is the third that Fitzgerald has initiated in the Southern District "stemming from the alleged wrongful conversion of an apartment house at 254 East 7th Street into cooperative apartments."Fitzgerald v. First East Seventh St. Tenants Corp., No. 99 CIV. 6051, 1999 WL 675996, at *1 (S.D.N.Y. Aug. 31, 1999). The first action was dismissedsua sponteby Judge Louis L. Stanton for lack of subject matter jurisdiction.See id.(citingFitzgerald v.Abrams,No. 93 Civ. 8229 (S.D.N.Y. Jan. 13, 1994)). Though Judge Stanton granted leave to replead within twenty-one days, Fitzgerald failed to do so. Instead, he brought another action over two years later, "again based on the conversion of the East 7th Street apartment house into cooperative apartments and events stemming therefrom."Id.Judge Loretta A. Preskasua spontedismissed the second complaint as frivolous; again, leave to replead within twenty-one days was afforded, and again Fitzgerald failed to take advantage of the opportunity.See id.(citingFitzgerald v. First East Seventh St. Tenants Corp., No. 96 CIV. 0126 (S.D.N.Y. Mar. 15, 1996)). Instead, he waited over three additional years before filing the instant complaint.

Observing that Fitzgerald "again repeats the allegations contained in his two prior federal actions based on the same conversion of an apartment house at 254 East 7th Street into cooperative apartments," the District Court found that Fitzgerald "is merely reasserting claims already dismissed as frivolous."Id. Stating that a "district court in the Second Circuit maysua spontedismiss a complaint even if the plaintiff has paid the filing fee," the Court exercised what it believed to be its authority and dismissed the complaint as frivolous.Id.

We conclude that the District Court properly determined that it possessed the power to dismiss the instant actionsua sponte, notwithstanding the fact that Fitzgerald had paid the $150 filing fee rather than requesting permission to proceedin formapauperis. If Fitzgerald had sought to proceedin forma pauperis, dismissal would have been mandatory under28 U.S.C. § 1915(e)(2). We previously have found — in a case where the unrepresented appellant paid the normal filing fee — that, even in the absence of the statutory authority provided by 1915 with respect to parties proceedingin forma pauperis, the Court of Appeals would have inherent authority to dismiss a frivolous appeal.See Pillay v. INS,45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam).1ThePillaydecisionPage 364relied in part onMallard v. United States District Court,490 U.S. 296(1989), in which the Supreme Court stated that "`Section 1915(d) . . . authorizes courts to dismiss a frivolous or malicious action,but there is little doubt they would have power to do so even in theabsence of this statutory provision.'"Pillay,45 F.3d at 16 (quotingMallard, 490 U.S. at 307-08 (internal quotation marks omitted) (emphasis added)). This statement inMallard, quoted inPillay, draws no distinction between district courts and courts of appeal, and we see no reason to differentiate in this regard between the powers of trial and appellate courts. District courts and courts of appeal are equally capable of determining when an action is frivolous. Indeed, as courts of first instance, district courts are especially likely to be exposed to frivolous actions, and thus have an even greater need for inherent authority to dismiss such actions quickly in order to preserve scarce judicial resources. Accordingly, we hold that district courts may dismiss a frivolous complaintsua sponteeven when the plaintiff has paid the required filing fee, just as the Court of Appeals may dismiss frivolous matters in like circumstances. In this case, the District Court acted properly in exercising this authority.2

The District Court'ssua spontedismissal of this action is hereby affirmed.3
  1. The Honorable William T. Hodges, United States District Judge for the Middle District of Florida, sitting by designation. ↩
  2. In 1995, whenPillaywas decided, the relevant statutory provision allowed, but did not require, a court to dismiss aninforma pauperisaction "if satisfied that the action is frivolous or malicious." 28 U.S.C. 1915(d) (1994) (current version at28 U.S.C. § 1915(e)). ↩
  3. As we have explained recently, it is no longer clear whether dismissals under the former28 U.S.C. § 1915(d), subsequently altered and redesignated as28 U.S.C. § 1915(e), are revieweddenovoor for abuse of discretion.See Montero v. Travis,171 F.3d 757, 759-60 n. 1 (2d Cir. 1999) (per curiam). We need not decide which standard applies to thesua spontedismissal at issue here, because the District Court's decision easily passes muster under the more rigorousde novoreview. ↩
  4. It has come to our attention that Fitzgerald has been an active — and perhaps abusive — litigant, having filed a number of other actions in the Southern District of New York beyond the three mentioned above, at least one of which is now pending before another panel of this Court. With regard to whether Fitzgerald's actions merit the imposition of sanctions, including limitations on his ability to file additional actions and/or appeals thereof, we defer to the courts handling the outstanding matters. ↩