Soni v. Holtzer ( 2007 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "Soni v. Holtzer" (2007). 2007 Decisions. Paper 186.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2007/186
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    ALD-46                                                       NOT PRECEDENTIAL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