                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2007

Soni v. Holtzer
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2896




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"Soni v. Holtzer" (2007). 2007 Decisions. Paper 186.
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ALD-46                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-2896
                                     ___________

                                SHASHIBALA SONI,
                                                          Appellant

                                           v.

   BENJAMIN HOLTZER; STEVE MANIKEN; ALAN NISSELSON; FRANCIS G.
                      CONRAD; DIMITRI JONES
                ____________________________________

                   On Appeal from the United States District Court
                            for the District of New Jersey
                            (D.C. Civil No. 06-cv-03894)
                     District Judge: Honorable Jose L. Linares
                    ____________________________________

  Submitted for Possible Dismissal Due to a Jurisdictional Defect or Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 8, 2007

            Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                          (Opinion filed: November 27, 2007)
                                       _________

                                      OPINION
                                      _________

PER CURIAM

      The United States District Court for the District of New Jersey dismissed

Appellant’s claims. We will summarily affirm.

                                           I.
         On August 17, 2006, Appellant Shashibala Soni filed a pro se complaint, naming

five defendants: (1) Benjamin Z. Holczer, Esq. (identified as “Benjamin Holtzer”); (2)

Alan Nisselson, Esq.; (3) Steve Maniken (identified as “Steve Miniken”); (4) former

Eastern District of New York Bankruptcy Judge Francis G. Conrad; and (5) Assistant

United States Attorney Demetri Jones, Esq. (identified as “Dmitri Jones”). Soni alleged

that Defendants, together with her ex-husband, were part of the “Brooklyn Mafia group”

and that they conspired to defraud her, seize her property, and damage her medical

practice by means of a corrupt bankruptcy proceeding in the Eastern District of New

York. It appears that Judge Conrad presided over the bankruptcy case, which began in

1991 and ended by July 2000. Nisselson served as the bankruptcy trustee, in which

capacity he was represented by Holczer. The complaint itself contained no specific

allegations with respect to Jones, but it appears that she is currently prosecuting Soni for

tax fraud in the Eastern District of New York. In the end, the District Court liberally

construed Soni’s pro se pleading as alleging a federal cause of action for conspiracy to

violate her due process rights as well as state-law tort claims for injury to property and

fraud.

         Soni then filed a default judgment motion, seeking an award of approximately $5

million. Although service of process was contested by Defendants, Soni claimed she had

in fact served them all via certified mail sent to their alleged business addresses in New

York. According to Soni, unspecified persons in the District Court Clerk’s Office told

her that such mailing constituted a proper method of service. The District Court denied

                                              2
her motion on January 4, 2007, stating, in an accompanying letter opinion, that neither

federal law, nor the laws of New Jersey or New York, authorized service of process by

mail in these circumstances. The District Court accordingly ordered that Soni’s case be

dismissed pursuant to Federal Rule of Civil Procedure 4(m) unless she submitted proofs

of proper service by February 5, 2007.

       On that date, Soni filed the required proofs, purportedly showing that process

servers had effected service by personal delivery to individuals at Defendants’ alleged

New York dwellings or places of business as well as by first-class mail addressed to such

locations. Receiving no documentation regarding Maniken, the District Court dismissed

all claims against this defendant on February 7, 2007. Holczer, Judge Conrad, and Jones

argued that there was no proper service of process, and Nisselson moved to dismiss

pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (6). Soni filed no

opposition, and the District Court disposed of the pending matters in an order and letter

opinion entered on May 23, 2007. It dismissed the claims against Holczer for failure to

effect proper service and granted Nisselson’s motion to dismiss. Nevertheless, the

District Court refrained from dismissing the claims against Judge Conrad and Jones

because, among other things, the two federal Defendants had failed to address whether

the alleged service was proper under either New Jersey or New York law. The District

Court accordingly ordered Judge Conrad and Jones to file a supplemental submission

challenging the method of service, an answer to the complaint, or a motion to dismiss by

June 8, 2007.

                                             3
       On that date, Judge Conrad and Jones moved to dismiss pursuant to Rules

12(b)(2), (5), and (6) or, alternatively, for summary judgment under Federal Rule of Civil

Procedure 56. On June 20, 2007, Soni filed a notice of appeal, in which she expressly

appealed from the District Court’s May 23, 2007 order. In an “affidavit” attached to this

notice, she essentially stated her grounds for opposing the then-pending dismissal motion.

On August 17, 2007, the District Court granted the motion to dismiss as to both Judge

Conrad and Jones.

                                            III.

       We have appellate jurisdiction over Soni’s appeal from the May 23, 2007 order

pursuant to 28 U.S.C. § 1291.1 Summary action is appropriate if there is no substantial

question presented in the appeal. See, e.g., Third Circuit LAR 27.4; Third Circuit I.O.P.



   1
     This appeal was submitted for possible dismissal on the grounds that the order of
May 23, 2007 did not appear to constitute a final appealable order because of its failure to
dispose of all claims as to all parties in this case. The District Court expressly refused to
dismiss Soni’s claims against Judge Conrad and Jones, and the two Defendants’ motion to
dismiss was still pending when Soni filed her notice of appeal on June 20, 2007.
Nevertheless, we do have jurisdiction over her appeal of the May 23, 2007 ruling. As
asserted in the then-pending dismissal motion (and as expressly found by the District
Court with respect to Jones), Judge Conrad and Jones were arguably never served with
process. See, e.g., Gomez v. Gov’t of the Virgin Islands, 882 F.2d 733, 736 (3d Cir.
1989) (stating that named but unserved defendant is not considered to be “party” for final
judgment purposes). Furthermore, even if it was premature at the time of filing, Soni’s
notice of appeal nevertheless “ripened” upon the District Court’s disposal of the
remaining claims against Judge Conrad and Jones on August 17, 2007. See, e.g., DL
Res., Inc. v. FirstEnergy Solutions Corp., — F.3d —, 2007 WL 2993114, at *4 (3d Cir.
2007) (stating that “‘a premature notice of appeal, filed after disposition of some of the
claims before a district court, but before entry of final judgment, will ripen upon the
court’s disposal of the remaining claims.’” (citation omitted)).

                                             4
10.6. For the following reasons, we find that this appeal presents no such substantial

question.

       The District Court was correct that Soni failed to effect proper service of process

on most Defendants. It appropriately sympathized with the difficulties that a pro se

litigant may face in attempting to effect service of process. The difficulties here were

further compounded by allegedly inaccurate advice received from the District Court

Clerk’s Office. Nevertheless, the District Court properly recognized that it remains the

plaintiff’s duty to serve process on the named defendants in a manner consistent with the

Federal Rules of Civil Procedure. Regarding Soni’s initial attempt at service before filing

her default judgment motion, service of process by certified mail in such circumstances

was not authorized by the federal service-of-process rule, New Jersey law (as the state in

which the District Court was located), or New York law (as the state in which Defendants

were allegedly served). See, e.g., Fed. R. Civ. P. 4(e)(2), (i)(2)(B); N.J. Ct. R. 4:4-3(a),

4:4-4 (b)(1), (c); N.Y. C.P.L.R. 312-a(a), (f). Her subsequent efforts to effect service

through professional process servers were likewise unsuccessful. It appears that Soni

never attempted to serve Maniken after the District Court’s January 4, 2004 ruling and, at

the very least, failed to present the required proof of such service. As to Holczer, the

District Court correctly found that the summons and complaint were delivered and mailed

to the wrong address. Holczer worked on the eighteenth floor of the building as opposed

to its first floor, and, according to his affidavit, he never received the alleged mailing.

       The District Court also appropriately dismissed the claims against Nisselson on

                                               5
statute of limitations grounds. In fact, the applicable statutes of limitations barred Soni’s

claims against Maniken and Holczer as well. As Soni herself admitted, the allegedly

improper bankruptcy proceeding began in 1991 and was terminated in July 2000.

However, she did not file her complaint until August 17, 2006. This was clearly too late

under either the possibly applicable statutes of limitations for federal constitutional

claims, see, e.g., McKithen v. Brown, 481 F.3d 89, 100 n.12 (3d Cir. 2007) (stating that

statute of limitations for section 1983 claims accruing in New York was three years);

Montgomery v. De Simone, 159 F.3d 120, 126 n.4 (3d Cir. 1998) (stating that statute of

limitations for section 1983 claims that accrued in New Jersey was two years), or the

limitations periods for a cause of action under state tort law, see, e.g., N.Y. C.P.L.R. 213

(providing that fraud action must be commenced within the greater of six years from date

of accrual or two years from time plaintiff discovered or reasonably could have

discovered fraud), 214 (providing that action for injury to property must be brought

within three years); Kaufman v. i-State Corp., 754 A.2d 1188, 1205 (N.J. 2000) (finding

that New Jersey fraud claim was subject to six-year statute of limitations). In the

“affidavit” attached to her notice of appeal, Soni contends that the consequences of the

alleged misconduct “are felt till this date” and that “[t]here is no statute of limitation on

criminal action.” (Notice at 3.) However, any alleged continuing violation would have

ended no later than the termination of her bankruptcy case in 2000, and neither the

continuing violation nor any other equitable doctrine would justify filing a complaint

more than six years later. See, e.g., West v. Phila. Elec. Co., 45 F.3d 744, 754-55 (3d Cir.

                                               6
1995) (addressing some elements of continuing violation theory). Likewise, criminal

prosecutions are often restricted by their own statutes of limitations, and Soni herself filed

a civil case subject to otherwise applicable civil time limits.2

                                               III.

          Therefore, because Soni’s appeal fails to present a substantial question, we will

affirm.




   2
      It therefore appears that Soni’s claims against both Judge Conrad and Jones were
likewise time-barred. Furthermore, Jones herself was never properly served with process,
given that Soni sent the necessary summons and complaint to the wrong address. In any
case, the District Court did not dispose of the claims against these two individuals until
August 17, 2007. However, the notice of appeal was filed on June 20, 2007 and therefore
did not encompass this subsequent ruling. See supra n.1. Soni then had the opportunity
to file a second or supplemental notice of appeal after the District Court’s August 17,
2007 ruling, but she did not do so. In these circumstances, the District Court’s dismissal
of the claims against Judge Conrad and Jones is not before us in this current appeal.

       Although not mentioned by the District Court, Soni also alleged that Defendants
defrauded and took the property of her friends or “associates.” Soni, however, clearly
lacked the standing to assert claims based on alleged damages suffered by others.

                                                7
