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Florimonte v. Borough of Dalton

United States District Court, M.D. Pennsylvania

December 14, 2017

CAROLYN JANE FLORIMONTE, Plaintiff,
v.
BOROUGH OF DALTON, a.k.a. BOROUGH COUNCIL, Defendant.

          MARIANI, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. United States Magistrate Judge

         This is the twelfth civil action initiated by the pro se plaintiff, Carolyn Jane Florimonte, in a property dispute that has more lives than a cat. It is the second federal civil action; the other ten cases were filed in state court. Florimonte claims that the municipal defendant, the Borough of Dalton (the “Borough”), has deprived her of her property interests without due process or just compensation. Florimonte claims that the Borough has redirected a substantial volume of storm water runoff on to her land, depriving her of its use and damaging her home. She further claims that the Borough has participated in a fraudulent scheme in past court proceedings, depriving her of the fair adjudicatory process to which she is entitled.

         I. Background

         A. The First Action, Case No. 2003-CV-06611

         Florimonte filed her first lawsuit against the Borough on March 4, 2003, asserting negligence and trespass claims and seeking money damages and injunctive relief. Florimonte v. Borough of Dalton, Docket No. 2003-CV-06611 (Lackawanna Cty. C.C.P. filed Mar. 4, 2003). (Doc. 1-1, at 38-42). Initially, she was represented by counsel, but her attorney was permitted to withdraw in June 2009, and she proceeded pro se thereafter. (Doc. 10, at 33). A bench trial was held on August 10, 2011, and on December 28, 2011, the trial court entered an opinion and order denying relief for both claims. (Doc. 10, at 84-99).

         The trial court entered its judgment on April 25, 2012, and Florimonte appealed to the Commonwealth Court of Pennsylvania. Florimonte v. Borough of Dalton, No. 987 C.D. 2012, 2013 WL 3973727, at *1 & n.1 (Pa. Commw. Ct. Apr. 4, 2013). On April 4, 2013, the Commonwealth Court affirmed the trial court decision with respect to Florimonte's negligence claim, but reversed it with respect to her equitable claim for trespass; the appellate court also expressly held that Florimonte had affirmatively waived her takings claim and any claims for money damages at trial. Id. at *3-*4, *11. The case was remanded back to the Lackawanna County Court of Common Pleas, with instructions that the trial court fashion equitable relief to abate the continuing trespass created by the Borough's unlawful concentration and discharge of surface water through two pipes. Id.

         On July 25, 2013, the trial court entered an opinion and order directing the Borough to remove one of the two pipes from Florimonte's property (the other was not located on her property, but merely directed concentrated water onto it), and to seal and cap both pipes to prevent any further trespass by the diverted storm water runoff. (Doc. 7-1, at 13-20). No further appeal was filed by either party.

         B. The Second Action, Case No. 10-CV-5981

         While the first action remained pending before the trial court, Florimonte filed a second, pro se lawsuit in state court on August 26, 2010, seeking damages for emotional distress and suffering due to the effect the excess water had on her home and for financial distress/hardship because the excess water had rendered her property unmarketable and she had been forced to borrow money to maintain the property. Florimonte v. Borough of Dalton, Docket No. 10-CV-5981 (Lackawanna Cty. C.C.P. filed Aug. 26, 2010); see also Florimonte v. Borough of Dalton, No. 266 C.D. 2011, 2012 WL 8666764, at *1 (Pa. Commw. Ct. Jan. 27, 2012) (reciting procedural history). On January 18, 2011, the trial court dismissed the action under the state-law doctrine of lis pendens.[1] Florimonte, 2012 WL 8666764, at *1. Florimonte appealed, and the Commonwealth Court affirmed the trial court decision on January 27, 2012. Id. at *2, *4. Florimonte petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on July 3, 2012. Florimonte v. Borough of Dalton, 47 A.3d 849 (Pa. 2012) (table decision). She then petitioned the Supreme Court of the United States for a writ of certiorari, which was denied on December 3, 2012. Florimonte v. Borough of Dalton, 133 S.Ct. 764 (2012). The Supreme Court subsequently denied her petition for rehearing on January 14, 2013. Florimonte v. Borough of Dalton, 133 S.Ct. 974 (2013).

         C. The Third Action, Case No. 2010-CIV-7822

         While the first two actions remained pending before the trial court, Florimonte filed a third, pro se lawsuit in state court on November 1, 2010, seeking injunctive relief and statutory damages for a Fifth Amendment takings claim, for equal protection claims under the Fourteenth Amendment and the Pennsylvania state constitution, and for purported violations of the Pennsylvania eminent domain code. Florimonte v. Borough of Dalton, Docket No. 2010-CIV-7822 (Lackawanna Cty. C.C.P. filed Nov. 1, 2010); see also Florimonte v. Borough of Dalton, No. 2273 CD 2011, 2012 WL 8704477, at *1 (Pa. Commw. Ct. Sept. 18, 2012) (per curiam) (reciting procedural history). On November 9, 2011, the trial court dismissed the action under the state-law doctrine of lis pendens. Florimonte, 2012 WL 8704477, at *2. Florimonte appealed, and the Commonwealth Court affirmed the trial court decision per curiam on September 18, 2012. Id. at *3-*4. Florimonte petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on March 28, 2013. Florimonte v. Borough of Dalton, 72 A.3d 605 (Pa. 2013) (table decision).

         D. The Fourth Action, Case No. 2010-CV-8001

         While the first three actions remained pending before the trial court, Florimonte filed a fourth, pro se lawsuit in state court on November 5, 2010, seeking damages and injunctive relief for personal injuries, including a spinal injury caused by a falling branch, an internal injury suffered while cleaning up debris from fallen trees, and splinters and infection suffered from picking up the debris, all of which she attributed to damage inflicted upon the trees by the excessive water directed onto her property by the Borough. Florimonte v. Borough of Dalton, Docket No. 2010-CV-8001 (Lackawanna Cty. C.C.P. filed Nov. 5, 2010); see also Florimonte v. Borough of Dalton, No. 2323 C.D. 2011, 2012 WL 8704489, at *1 (Pa. Commw. Ct. Oct. 16, 2012) (per curiam) (reciting procedural history). On November 9, 2011, the trial court dismissed the action under the state-law doctrine of lis pendens. Florimonte, 2012 WL 8704489, at *2. Florimonte appealed, and the Commonwealth Court affirmed the trial court decision per curiam on October 16, 2012. Id. at *3-*4. Florimonte petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on March 28, 2013. Florimonte v. Borough of Dalton, 91 A.3d 1240 (Pa. 2013) (table decision).

         E. The Fifth, Sixth, Seventh, and Eighth Actions

         While her first four actions against the Borough remained pending before the trial court, Florimonte filed four additional pro se lawsuits in state court in January 2011, asserting state and federal civil rights claims against four of her neighbors, individually. Flourimonte v. Salva, Docket Nos. 2011-CV-404, 2011-CV-405, 2011-CV-570, 2011-CV-571 (Lackawanna Cty. C.C.P. Jan. __, 2011); see also Florimonte v. Salva, Nos. 1305 CD 2012, 1306 CD 2012, 1307 CD 2012, 1308 CD 2012, 2013 WL 3973699 (Pa. Commw. Ct. Apr. 4, 2013) (reciting procedural history). On June 6, 2012, the trial court dismissed all four complaints for failure to state a claim. Florimonte, 2013 WL 3973699, at *1-*2. The trial court entered judgment in each of these four cases on June 20, 2012, and Florimonte appealed to the Commonwealth Court of Pennsylvania, which affirmed the trial court decisions on the merits on April 4, 2013. Florimonte, 2013 WL 3973699, at *2-*3. Florimonte petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on September 17, 2013. Florimonte v. Salva, 74 A.3d 1032 (Pa. 2013) (table decision).

         F. The Ninth Action, Case No. 2011-CV-7601

         While the previous eight actions remained pending before the trial court, Florimonte filed her ninth, pro se lawsuit in state court on December 14, 2011, against the Borough Council and its individual members in their official capacities, asserting an action for mandamus and requesting an award of punitive damages. Florimonte v. Council of Borough of Dalton, Docket No. 2011-CV-7601 (Lackawanna Cty. C.C.P. filed June 7, 2013); see also Florimonte v. Council of Borough of Dalton, No. 1786 C.D. 2012, 2013 WL 3156566, at *1 (Pa. Commw. Ct. June 7, 2013) (reciting procedural history). On August 16, 2012, the trial court dismissed the action under the state-law doctrine of lis pendens. Florimonte, 2013 WL 3156566, at *1- *2. Florimonte appealed, and the Commonwealth Court affirmed the trial court decision on June 7, 2013. Id. at *2-*3. Florimonte petitioned the Supreme Court of Pennsylvania for allocatur, which was denied on October 29, 2013. Florimonte v. Borough of Dalton, 78 A.3d 1092 (Pa. 2013) (table decision).

         G. The Tenth Action, Case No. 3:CV-14-0341

         After the dust had settled and each of the nine previous lawsuits had reached its conclusion in state court, Florimonte brought her land dispute into federal court on February 25, 2014, filing her tenth, pro se lawsuit in this Court. See Florimonte v. Borough of Dalton, Civil Action No. 3:CV-14-0341, 2014 WL 3114071, at *2 (M.D. Pa. July 7, 2014), aff'd, 603 Fed. App'x 67 (3d Cir. 2015) (per curiam). In her first federal complaint, Florimonte asserted federal civil rights claims under 42 U.S.C. § 1983 based on the allegedly unlawful taking of her property in violation of the Fifth and Fourteenth Amendments and the deprivation of her Fourteenth Amendment equal protection rights; she also asserted civil rights conspiracy claims under 42 U.S.C. § 1985(2) and (3). Id. As relief, Florimonte sought damages and injunctive relief. Id. On July 7, 2014, this Court dismissed Florimonte's first federal civil action on res judicata grounds. Id. at *3-*4. Florimonte appealed, and the United States Court of Appeals for the Third Circuit affirmed this Court's decision on May 20, 2015. Florimonte v. Borough of Dalton, 603 Fed. App'x 67, 68 (3d Cir. 2015) (per curiam).

         H. The Eleventh Action, Case No. 2016 CV 3588

         About one year later, Florimonte filed an eleventh, pro se lawsuit in state court on June 16, 2016, seeking damages and injunctive relief for the Borough's allegedly willful failure to correct a dangerous condition with respect to storm water flooding along the street on which her residence and land parcel are situated, and allegedly defamatory statements to other residents attributing the flooding to Florimonte's litigation against the Borough. Florimonte v. Borough of Dalton, Docket No. 2016 CV 3588 (Lackawanna Cty. C.C.P. filed June 16, 2016) (Doc. 5-4). On September 30, 2016, the trial court dismissed the action on res judicata grounds. Florimonte v. Borough of Dalton, Docket No. 2016 CV 3588 (Lackawanna Cty. C.C.P. dismissed Sept. 30, 2016) (Doc. 5-6). Florimonte did not appeal.

         I. The Twelfth Action, Case No. 3:17-CV-01063

         On June 16, 2017, Florimonte filed her original, pro se complaint in this action, her twelfth lawsuit concerning the very same property dispute with the Borough of Dalton. (Doc. 1). On July 21, 2017, the Borough filed the instant motion to dismiss and for sanctions. (Doc. 5). On August 1, 2017, the Borough filed a brief in support of the motion, arguing that this action is barred by res judicata, by the applicable statute of limitations, and by the Rooker-Feldman doctrine, and that Florimonte's takings claim is unripe because she has not pursued available remedies under the state's eminent domain code. (Doc. 7). The Borough has further argued that Florimonte's repeated and abusive filing of frivolous lawsuits such as this one merits imposition of a “serious and substantial monetary sanction” against Florimonte, as well as an injunction barring her from filing any future civil actions in the federal district courts of Pennsylvania. (Id.). On August 3, 2017, Florimonte filed a brief in opposition to the Borough's motion. (Doc. 8). On September 25, 2017, Florimonte proffered an amended complaint, which purportedly clarified the basis of her claims that prior litigation outcomes could be vacated due to “fraud on the court” and “extrinsic fraud.” (Doc. 10). On December 4, 2017, we granted Florimonte leave to file the amended complaint, finding that the allegations of the amended complaint did not moot the Borough's motion to dismiss. (Doc. 13).[2] Accordingly, the Borough's motion to dismiss and for sanctions is ripe for disposition.

         II. Legal Standard

         Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds the plaintiff's claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although the Court must accept the fact allegations in the complaint as true, it is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)).

         Under Rule 12(b)(6), the defendant has the burden of showing that no claim has been stated. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v. Luzerne County Head Start, Inc., 385 F.Supp.2d 491, 495 (M.D. Pa. 2005). Although a plaintiff is entitled to notice and an opportunity to respond to a motion to dismiss, he has no obligation to do so-he may opt to stand on the pleadings rather than file an opposition. The Court must nevertheless examine the complaint and determine whether it states a claim as a matter of law. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990). In deciding the motion, the Court may consider the facts alleged on the face of the complaint, as well as “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         III. ...


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