23-7753-cv Kamdem-Ouaffo v. Baker Botts LLP

23-7753-cv Kamdem-Ouaffo v. Baker Botts LLP

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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd day of December, two thousand twenty-four.

PRESENT: RICHARD C. WESLEY, STEVEN J. MENASHI, Circuit Judges. * _____________________________________

Ricky Kamdem-Ouaffo,

Plaintiff-Appellant,

v. 23-7753

Baker Botts LLP, Richard B. Harper, Robert Lawrence Mairer, Jennifer

*Judge José A. Cabranes, originally a member of the panel, recused from this appeal. The two remaining members of the panel, who are in agreement, have determined the matter. See

(d); 2d Cir. IOP E(b); United States v. Desimone,

(2d Cir. 1998). Cozeolino Tempesta, Borrelli & Associates PLLC, London Fischer LLP, Philip A. Kahn, Michael Borrelli, Anthony P. Malecki, Dolores M. Almedia, Brian P.S. McCabe, Robert A. Bruno, Settlements Systems Inc., TD Bank N.A., Robert Lougy, Clerk of the Superior Court of New Jersey, Armando B. Fontoura, Fein, Such, Kahn & Shepard P.C., Hearing Officer “J,” Luboja and Thau LLP, PepsiCo Inc., John G. Luboja, Richard M. Hunter, Peter Given, Law Office of Jonathan C. Thau LLP, London Fischer LLP, Aida Costello, ABC Corporation (1-10), Jane Doe, Najie Zhang, Jonathan C. Thau, John Doe, Nassau County Clerk, Supreme Court of New York,

Defendants-Appellees,

Nassau County Clerk, Supreme Court of New York,

Defendant. * _____________________________________

FOR PLAINTIFF-APPELLANT: Ricky Kamdem-Ouaffo, pro se, New Brunswick, NJ.

FOR DEFENDANTS-APPELLEES Jeffrey S. Leonard, Lewis MICHAEL J. BORRELLI, ANTHONY Brisbois Bisgaard & Smith LLP,

* The Clerk of Court is directed to amend the caption as set forth above. 2 P. MALECKI, & BORRELLI & Newark, NJ. ASSOCIATES, PLLC:

FOR DEFENDANT-APPELLEE Thomas A. Leghorn, London LONDON FISCHER LLP: Fischer LLP, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Seibel, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment is AFFIRMED.

Plaintiff-Appellant Ricky Kamdem-Ouaffo, proceeding pro se, sued several

attorneys, law firms, court staff, judges, and alleged debt collectors in relation to

four prior lawsuits: (1) a 2010 case he filed against PepsiCo in the New York State

Supreme Court, Westchester County; (2) a 2014 case filed in the United States

District Court for the Southern District of New York, also against PepsiCo; (3) a

2021 case filed against him in Nassau County by his former attorneys, which

resulted in levies and wage garnishments; and (4) debt collection efforts by those

attorneys in New Jersey in 2022. He attacked the judgments in the 2010

Westchester case and the 2014 federal case as products of fraud on the court under

Federal Rule of Civil Procedure 60(d) and raised claims under the Fair Debt

3 Collection Practices Act,

, and state law.

The district court dismissed both Kamdem-Ouaffo’s initial complaint and

his amended complaint on its own initiative and without a motion from the

defendants. The district court concluded that Kamdem-Ouaffo failed to establish

that he was entitled to relief under Rule 60(d), that venue was improper with

respect to his claims arising out of the debt collection activity, and that the Rooker-

Feldman doctrine barred his request for vacatur of the 2010 Westchester judgment.

The district court also declined to exercise supplemental jurisdiction over the

remaining state law claims. See Kamdem-Ouaffo v. Baker Botts, LLP, No. 23-CV-2008,

(S.D.N.Y. June 5, 2023); Kamdem-Ouaffo v. Baker Botts, LLP, No.

23-CV-2008,

(S.D.N.Y. Sept. 7, 2023). Kamdem-Ouaffo appealed.

We assume the parties’ familiarity with the facts, the procedural history, and the

issues on appeal. 2

2 Although the parties have not challenged our jurisdiction to review the judgment, we are required to reach the issue ourselves, even when not disputed. Marquez v. Silver,

(2d Cir. 2024). Upon due consideration, we are satisfied that we have appellate jurisdiction. Even though the notice of appeal was filed more than thirty days after the entry of both the original dismissal order and the order denying the initial post- judgment motion, the district court did not enter a separate judgment as required by Federal Rule of Civil Procedure 58(a), deferring the commencement of the thirty-day appellate period by 150 days. See Fed. R. Civ. P. 58(c)(2)(B); Fed. R. App. P. 4(a)(7)(A)(ii). 4 We review the district court’s dismissal of the complaint in this case de

novo—that is, we fully re-examine the allegations and claims in the complaint. J.S.

v. T’Kach,

(2d Cir. 2013). In reviewing such a dismissal, we accept

the facts alleged in the complaint as true and draw all inferences in the plaintiff’s

favor. Harnage v. Lightner,

(2d Cir. 2019). Because Kamdem-

Ouaffo is proceeding pro se, we construe his filings to raise the strongest claims

they suggest. J.S.,

.

I

To the extent that Kamdem-Ouaffo directly seeks review of the 2010

Westchester judgment, our prior cases dealing with similar circumstances bar his

claim. “[U]nder what has come to be known as the Rooker-Feldman doctrine, lower

federal courts are precluded from exercising appellate jurisdiction over final state-

court judgments” because

vests federal appellate jurisdiction over

state judgments exclusively in the United States Supreme Court. Lance v. Dennis,

(2006). We have explained that an action is barred under Rooker-

Feldman only if “(1) the federal-court plaintiff lost in state court; (2) the plaintiff

As a result, the notice of appeal was timely filed in relation to the original dismissal order, even without any tolling effect from the post-judgment motions. 5 complains of injuries caused by a state court judgment; (3) the plaintiff invites

review and rejection of that judgment; and (4) the state judgment was rendered

before the district court proceedings commenced.” Hunter v. McMahon,

(2d Cir. 2023) (quoting Vossbrinck v. Accredited Home Lenders, Inc.,

(2d Cir. 2014)).

These factors are satisfied here. First, Kamdem-Ouaffo lost in the

Westchester action. Second, he complains, at least in part, of injuries arising from

the judgment. Third, he specifically requested a court order vacating the original

and subsequent state decisions. Fourth, the state court judgment was rendered

long before the federal court proceedings commenced. Thus, the district court

properly concluded that Rooker-Feldman barred Kamdem-Ouaffo’s request for

vacatur of the 2010 Westchester judgment to the extent that the request invited

review of the state court judgment.

To the extent that Kamdem-Ouaffo’s claims relating to the 2010 Westchester

decision did not invite such review, the district court properly concluded that

those claims failed on the merits. Kamden-Ouaffo did not state a claim for

violation of New York Judiciary Law § 487 because he did not plead the type of

intentional deception that would establish a violation of § 487. He did not plead

6 his claim for fraud on the court with the required level of particularity. And he did

not state a claim for conspiracy and breach of fiduciary duty because he did not

allege facts plausibly suggesting the existence of a conspiracy or that any

defendant owed him a fiduciary duty and breached it.

II

Kamdem-Ouaffo’s argument that he was entitled to relief from the 2014

Southern District of New York decision under Federal Rule of Civil Procedure

60(d) also fails. As we recently clarified, we review the dismissal of an independent

action brought under Rule 60(d) for abuse of discretion. Marco Destin, Inc. v. Levy,

(2d Cir. 2024). An independent action is “available only to

prevent a grave miscarriage of justice.” United States v. Beggerly,

(1998).

The district court did not abuse its discretion in concluding that the

allegations here fell short of this standard. See Kamdem-Ouaffo,

,

at *2-3. Kamdem-Ouaffo argues that the Baker Botts lawyers representing PepsiCo

in the 2014 Southern District of New York case must have known that the state

court in the 2010 Westchester case was fraudulently deceived. In particular,

Kamdem-Ouaffo alleges that when the Baker Botts lawyers relied on findings

7 made in the Westchester case to have the 2014 Southern District of New York case

dismissed, those lawyers must have known that PepsiCo advanced a contradictory

position with respect to the facts. We agree with the district court that this claim is

ultimately conclusory. PepsiCo’s purportedly contradictory position taken in 2018

in a different litigation does not plausibly suggest the existence of fraud in

Kamdem-Ouaffo’s litigation occurring many years earlier. Moreover, Kamdem-

Ouaffo has not asserted that he was prevented from fully and fairly presenting his

case in the Southern District of New York in 2014. See Mazzei v. The Money Store,

(2d Cir. 2023).

III

The district court did not improperly dismiss the claim under New York

Judiciary Law § 487. We review a district court’s decision to decline supplemental

jurisdiction over state-law claims for abuse of discretion. Kroshnyi v. U.S. Pack

Courier Servs., Inc.,

(2d Cir. 2014). As a general matter, a district

court does not abuse its discretion by declining supplemental jurisdiction if it has

dismissed all federal claims before trial. See Motorola Credit Corp. v. Uzan,

(2d Cir. 2004).

8 Here, the district court dismissed all of the federal claims over which it had

original jurisdiction, and Kamdem-Ouaffo has not demonstrated that the

substantial expenditure of time, effort, or money weighed in favor of exercising

jurisdiction. Purgess v. Sharrock,

(2d Cir. 1994). Accordingly, the

district court acted within its discretion.

* * *

We have considered Kamdem-Ouaffo’s remaining arguments, which we

conclude are without merit. For the foregoing reasons, we affirm the judgment of

the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

9