         14-907-cv
         Martinez v. Queens Cnty. Dist. Attorney, et al.


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                 SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       7th day of January, two thousand fifteen.
 4
 5       PRESENT:
 6                   ROSEMARY S. POOLER,
 7                   DEBRA ANN LIVINGSTON,
 8                   CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10       _____________________________________
11
12       Gilbert M. Martinez,
13
14                                    Plaintiff-Appellant,
15                                                                    14-907-cv
16
17                          v.
18
19       Queens County District Attorney, (ADA Debra
20       Pomodor), Kings County District Attorney, Kings
21       County Family Court, (Honorable Anthony
22       Cannataro), New York City Police Department,
23       (Narcotics Division), New York Supreme Court,
24       (Honorable Alice Schlesinger), Berks County
25       Family Court, (Honorable Scott E. Lash), Berks
26       County Human Resources, Berks County Social
27       Security Administration, Met-Ed Electric Supplier,
28       Verizon New York Inc., Berks Community Health
29       Center, Reading Hospital, Saint Joseph Hospital,
30       SUNY Downstate Medical Center, Gloria P.
31       Margary, MID-Penn Legal Services, Berks County
 1   Police Department, City of Reading Police
 2   Department, Saint Joseph Health Network, doing
 3   business as Saint Joseph Medical Center, Michael
 4   D. Carlin, Jessica A. Spector, Rafael Margary,
 5   T-Mobile US, Inc., Gloria A. Margary,
 6
 7                           Defendants-Appellees.1
 8
 9   _____________________________________
10
11   FOR PLAINTIFF-APPELLANT:               Gilbert M. Martinez, pro se, Reading, PA.
12
13   FOR DEFENDANTS-APPELLEES: Andrew B. Adair, Deasey, Mahoney & Valentini,
14                            Ltd., Media, PA for Appellee Berks County Human
15                            Resources.
16
17                                          John P. Beyel, McElroy, Deutsch, Mulvaney & Carpenter,
18                                          LLP, Morristown, NJ for Appellee Met-Ed Electric
19                                          Supplier.
20
21                                          William D. Christ (Spencer L. Durland, on the brief),
22                                          Phillips Lytle LLP, Buffalo, NY for Appellee Verizon New
23                                          York Inc.
24
25                                          Kenneth P. Starace, McAloon & Friedman, P.C., New
26                                          York, NY for Appellee Berks Community Health Center.
27
28                                          Bradley L. Mitchell, Stevens & Lee, P.C., New York, NY
29                                          for Appellee Reading Hospital.
30
31                                          Ami Bhatt, Norris McLaughlin & Marcus, P.A., New York,
32                                          NY for Appellees Saint Joseph Hospital and Saint Joseph
33                                          Health Network, doing business as Saint Joseph Medical
34                                          Center.
35
36                                          Wendy B. Shepps, Podvey, Meanor, Catenacci, Hildner,
37                                          Cocoziello & Chattman, P.C., Newark, NJ for Appellee
38                                          MID-Penn Legal Services.
39
40                                          David J. MacMain, MacMain Law Group, LLC, Malvern,
41                                          PA for Appellee City of Reading Police Department.


            1
                The Clerk of Court is directed to amend the caption as above.

                                                      2
 1                                          William J. Foley, Jr. (Jason M. Halper, on the brief),
 2                                          Orrick, Herrington & Sutcliffe LLP, New York, NY for
 3                                          Appellee Jessica A. Spector.
 4
 5                                          Marc A. Rapaport, Rapaport Law Firm, PLLC, New York,
 6                                          NY for Appellee T-Mobile US, Inc.

 7          Appeal from a judgment and order of the United States District Court for the Eastern

 8   District of New York (Mauskopf, J.).

 9          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

10   DECREED that the judgment and order of the district court is AFFIRMED.

11          Appellant Gilbert M. Martinez, proceeding pro se, appeals from the March 17, 2014

12   judgment and order of the district court dismissing his 42 U.S.C. § 1983 suit for lack of personal

13   jurisdiction, lack of subject matter jurisdiction, service defects, and failure to state a claim. We

14   assume the parties’ familiarity with the underlying facts, the procedural history of the case, and

15   the issues on appeal.

16          We review de novo a district court’s dismissal of a complaint for lack of subject matter

17   jurisdiction. Norex Petroleum Ltd. v. Access Indus., Inc., 631 F.3d 29, 32 (2d Cir. 2010). “A

18   [claim] is properly dismissed for lack of subject matter jurisdiction . . . when the district court

19   lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d

20   110, 113 (2d Cir. 2000). The district court properly dismissed Martinez’s claims against the New

21   York Supreme Court, Judge Schlesinger, the Kings County Family Court, Judge Cannataro, the

22   Berks County Family Court, Judge Lash, Gloria P. Margary, Gloria A. Margary, and Rafael

23   Margary, under the domestic relations law exception to federal court jurisdiction. Martinez’s

24   assertion that the domestic relations exception does not apply because his lawsuit does not seek a

25   divorce, alimony, or custody decree is unavailing. The domestic relations exception to subject

                                                       3
1    matter jurisdiction generally “encompasses only cases involving the issuance of a divorce,

 2   alimony, or child custody decree.” Ankenbrandt v. Richards, 504 U.S. 689, 704 (1992); see Am.

 3   Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990). However, subject matter jurisdiction may

 4   be lacking in actions directed at challenging the results of domestic relations proceedings. See

 5   Ankenbrandt, 504 U.S. at 705 (noting that it may be appropriate for courts to abstain from

 6   exercising subject matter jurisdiction “in a case involving elements of the domestic relationship

 7   even when the parties do not seek divorce, alimony, or child custody”); see also Am. Airlines,

 8   905 F.2d at 14 (“A federal court presented with matrimonial issues or issues on the verge of

 9   being matrimonial in nature should abstain from exercising jurisdiction so long as there is no

10   obstacle to their full and fair determination in state courts.” (internal quotation marks omitted)).

11          The district court also properly dismissed Martinez’s claims against SUNY Downstate

12   Medical Center, Berks County Human Resources, Berks County Social Security Administration,

13   and the Pennsylvania Department of Public Welfare, on sovereign immunity grounds. Martinez’s

14   argument that these defendants did not specifically assert sovereign immunity is misplaced, as

15   courts may raise the issue of sovereign immunity “sua sponte because it affects . . . subject

16   matter jurisdiction.” Atl. Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993).

17          We also review de novo a district court’s dismissal of a complaint for lack of personal

18   jurisdiction under Fed. R. Civ. P. 12(b)(2). See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84

19   F.3d 560, 567 (2d Cir. 1996). In ruling on a motion under Rule 12(b)(2), a district court “must

20   determine whether there is jurisdiction over the defendant under the relevant forum state’s laws.”

21   Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999).

22   Although the party asserting jurisdiction bears the burden of demonstrating that jurisdiction


                                                       4
 1   exists, Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994), in reviewing

 2   a dismissal for want of personal jurisdiction, we construe all pleadings and affidavits in the light

 3   most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, DiStefano v. Carozzi

 4   N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001). The district court did not err in dismissing

 5   Martinez’s claims against Metropolitan Edison Company, Berks Community Health Center,

 6   Reading Hospital, and St. Joseph Health Network, doing business as St. Joseph Medical Center,

 7   for lack of personal jurisdiction. Martinez argues that these defendants waived defects in

 8   personal jurisdiction by failing to challenge them in a responsive pleading; however, each of

 9   these defendants moved to dismiss for lack of personal jurisdiction. See Fed. R. Civ. P.

10   12(h)(1)(B).

11          We review a district court’s dismissal of a complaint for lack of timely service under Fed.

12   R. Civ. P. 4(m) for abuse of discretion. Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012). We

13   will not overrule a district court’s dismissal for lack of service unless the appellant “advance[s]

14   some colorable excuse for neglect.” Id. (internal quotation marks omitted). A district court

15   abuses its discretion when “it dismisses a complaint sua sponte for lack of service without first

16   giving notice to the plaintiff and providing an opportunity for [him] to show good cause for the

17   failure to effect timely service.” Id. We find no error in the district court’s dismissal of

18   Martinez’s claims against SUNY Downstate Medical Center, Berks County Human Resources,

19   Berks County Social Security Administration, the Queens County District Attorney, ADA Debra

20   Pomodor, and the Kings County District Attorney, for service defects.

21          “We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6),

22   construing the complaint liberally, accepting all factual allegations in the complaint as true, and


                                                        5
 1   drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282

 2   F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss under Rule 12(b)(6), the complaint

 3   must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

 4   Twombly, 550 U.S. 544, 570 (2007). A complaint “containing only conclusory, vague, or general

 5   allegations of a conspiracy to deprive a person of constitutional rights cannot withstand a motion

 6   to dismiss.” Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (internal quotation marks

 7   omitted). We find no error in the district court’s dismissal of the claims against MID-Penn Legal

 8   Services, T-Mobile US, Inc., Verizon New York Inc., and attorneys Michael D. Carlin and

 9   Jessica A. Spector, for failure to plead facts from which a conspiracy between these defendants

10   and a state actor could be plausibly inferred. Nor do we find any error in the district court’s

11   dismissal of the claims against the Reading Police Department, the New York City Police

12   Department, and the City of New York, for failure to allege that their challenged conduct was

13   undertaken pursuant to an official policy or custom, as required to establish § 1983 municipal

14   liability under Monell v. Department of Social Services, 436 U.S. 658, 690–94 (1978).

15          Lastly, the district court did not err in declining to grant Martinez leave to amend his

16   complaint, as he was previously granted leave to amend, and any further amendment would have

17   been futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (finding leave to replead

18   would be futile where the complaint, even when read liberally, did not “suggest[] that the

19   plaintiff has a claim that she has inadequately or inartfully pleaded and that she should therefore

20   be given a chance to reframe”).

21          Accordingly, we affirm substantially for the reasons set forth by the district court in its

22   thorough and well-reasoned order dismissing Martinez’s complaint in its entirety and denying

23   him leave to amend his complaint.

                                                       6
1            The judgment and order of the district court is AFFIRMED. Each side to bear its own
2   costs.
3
4                                               FOR THE COURT:
5                                               Catherine O’Hagan Wolfe, Clerk

6




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