Michaelesco v. Estate of Richard ( 2009 )

07-4988-cv
Michaelesco v. Richard
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY O F TH AT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRO NIC D ATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF TH E O RDER O N SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of December, two thousand nine.
PRESENT:
JOHN M. WALKER, JR.,
JOSEPH M. McLAUGHLIN,
REENA RAGGI,
Circuit Judges.
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ORTANSA MICHAELESCO,
Plaintiff-Appellant,
v. No. 07-4988-cv
THE ESTATE OF BERNICE P. RICHARD, ROBERT
CARR AND JOELLE SHEFTS, EXECUTORS; LUTZ
& CARR, CPA, LLP; JPMORGAN CHASE & CO.;
GOOD MORNING AMERICA; SOTHEBY’S
INTERNATIONAL REALTY, INC.; VANITY FAIR,
INC.; GEORGE WACHTEL; NINETTE S. BORDOFF,
GUARDIAN AD LITEM,
Defendants-Appellees.1
1
The Clerk of the Court is directed to amend the official caption to read as shown
above.
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SUBMITTING FOR APPELLANT: ORTANSA MICHAELESCO, pro se, Fairfield,
Connecticut.
APPEARING FOR APPELLEES: AIMEE J. WOOD, Pullman & Comley, LLC,
Bridgeport, Connecticut, for Robert Carr and
Joelle Shefts.
Daniel M. Young, Wofsey, Rosen, Kweskin &
Kuriansky, LLP, Stamford, Connecticut, for JP
Morgan Chase & Co.
Ami Shah, Peter J. Larkin, Wilson Elser
Moskowitz Edelman & Dicker LLP, White Plains,
New York, for Lutz & Carr, CPAs.
Patrick J. McHugh, Meghan A. Laganza, Finn
Dixon & Herling LLP, Stamford, Connecticut, for
Sotheby’s International Realty, Inc.
Zachary G. Newman, Hahn & Hessen LLP, New
York, New York, Elizabeth M. Cristofaro,
Litchfield Cavo LLP, Avon, Connecticut, for
Ninette S. Bordoff, Guardian ad Litem.
Kurt W. Hansson, James Worthington, Paul
Hastings Jankovsky & Walker, Stamford,
Connecticut, for American Broadcasting
Companies, Inc.
Appeal from the United States District Court for the District of Connecticut (Stefan
R. Underhill, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on October 4, 2007, is AFFIRMED.
Ortansa Michaelesco, pro se, appeals the denial of her motion for remand and the
dismissal of her complaint as barred by res judicata. We review de novo the district court’s
2
decisions on a motion for remand, see Isaacson v. Dow Chem. Co., 517 F.3d 129, 135 (2d
Cir. 2008), and on a Fed. R. Civ. P. 12(b)(6) motion to dismiss, see Holmes v. Grubman, 568
F.3d 329, 335 (2d Cir. 2009). In applying these standards, we assume familiarity with the
facts and the record of prior proceedings, which we reference only as necessary to explain
our decision to affirm.
1. Remand
A party opposing removal must file a motion to remand “within thirty days after the
filing of the notice of removal.” 28 U.S.C. § 1447(c). Although defendants filed their notice
of removal on May 7, 2007, Michaelesco failed to move for remand until September 28,
2007. Thus, her motion was untimely and properly denied. Even if we were to construe
Michaelesco’s June 4, 2007 letter, copied to the district court, as a timely motion for remand,
we conclude, like the district court, that no remand was warranted based on defendants’
failure to file appearances in state court and their purported lack of unanimity. Defendants
properly filed their notice of removal in federal court, see 28 U.S.C. § 1446(a), and we
identify no error in the district court’s acceptance of defendants’ form of consent to the
removal, see Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 75
(2d Cir. 2005).
2. Res Judicata
Res judicata bars an action when a prior action involving the same parties or those in
privity with them was adjudicated on the merits and the claims asserted in the subsequent
action were, or could have been, raised in the prior action. Pike v. Freeman, 266 F.3d 78, 91
3
(2d Cir. 2001). This test is satisfied here. In 2004, asserting claims arising from the same
facts described in her instant complaint, Michaelesco sued the same defendants against whom
she now proceeds. On January 6, 2006, the district court dismissed her complaint on the
ground that her claims were time-barred.2 Contrary to Michaelesco’s contention, this was
an adjudication on the merits. See PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 896 (2d
Cir. 1983) (observing that “[t]he longstanding rule in this Circuit . . . is that a dismissal for
failure to comply with the statute of limitations will operate as an adjudication on the merits”
for purposes of res judicata). Nor is there any merit to Michaelesco’s assertion that the
defense of res judicata is not properly raised on a motion to dismiss. See Day v. Moscow,
955 F.2d 807, 811 (2d Cir. 1992).
We have considered all of Michaelesco’s remaining arguments and we conclude that
they are without merit. Accordingly, the judgment of the district court is AFFIRMED.3
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
By:__________________________
2
In 2005, Michaelesco filed a second action against the same defendants and based
on the same factual allegations. The district court dismissed her complaint in that action sua
sponte in an order dated February 28, 2006.
3
Michaelesco’s motion to set aside the district court’s September 2009 order allowing
attorney Christopher Sochacki to withdraw as counsel to defendant-appellant Ninette S.
Bordoff is dismissed as moot.
4