Diaz v. Paterson

05-2685-cv;06-3942-cv(L), 06-3992-cv(con)
Diaz v. Paterson; Diamond v. Paterson

1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 August Term, 2007
5
6
7 (Argued: April 1, 2008 Decided: October 17, 2008)
8
9 Docket Nos. 05-2685-cv, 06-3942-cv(L), 06-3992-cv(con)
10
11 - - - - - - - - - - - - - - - - - - - -X
12
13 OSCAR DIAZ,
14
15 Plaintiff-Appellant,
16
17 - v.-
18
19 DAVID PATERSON,* individually and in his
20 official capacity as Governor of the
21 State of New York, ANDREW CUOMO,
22 individually and in his official
23 capacity as Attorney General of the
24 State of New York, THOMAS P. DI NAPOLI,
25 individually and in his official
26 capacity as Comptroller of the State of
27 New York, HECTOR DIAZ, individually and
28 in his official capacity as Clerk of
29 the County of the Bronx, and on behalf
30 of a defendant class of New York County
31 Clerks and CHURCHILL MORTGAGE
32 INVESTMENT CORPORATION,
33
34 Defendants-Appellees.

*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Governor David Paterson is automatically
substituted for former Governor Eliot Spitzer as the
defendant in these cases.
 1
2 - - - - - - - - - - - - - - - - - - - X
3
4 JEHED DIAMOND and JOSEPH BETESH, on
5 behalf of themselves and all others
6 similarly situated,
7
8 Plaintiffs-Appellants,
9
10 - v.-
11
12 DAVID PATERSON, individually and in his
13 official capacity as Governor of the
14 State of New York, ANDREW CUOMO,
15 individually and in his official
16 capacity as Attorney General of the
17 State of New York, THOMAS P. DI NAPOLI,
18 individually and in his official
19 capacity as Comptroller of the State of
20 New York, GLORIA D’AMICO and SHARON A.
21 O’DELL, individually and in their
22 official capacity as Clerk of the
23 County of Queens and as Clerk of
24 Delaware County respectively, and on
25 behalf of a defendant class of New York
26 County Clerks, CHRISTOPHER JONES and
27 ABRAHAM BETESH,
28
29 Defendants-Appellees.
30
31 - - - - - - - - - - - - - - - - - - - X
32
33 Before: JACOBS, Chief Judge, KEARSE and POOLER,
34 Circuit Judges.
35
36 Appeals from final judgments dismissing, as a matter of

37 law, putative class actions alleging that New York’s lis

38 pendens law offends constitutional due process and equal

39 protection guarantees. Affirmed.

40

2
 1 JANET BENSHOOF (Toby Golick,
2 Cardozo Bet Tzedek Legal
3 Services, on the brief), New
4 York, New York, for Plaintiffs-
5 Appellants.
6
7 BENJAMIN ROSENBERG, Chief Trial
8 Counsel (Barbara D. Underwood,
9 Solicitor General, Michael S.
10 Belohlavek, Senior Counsel, on
11 the brief), for Andrew M. Cuomo,
12 Attorney General of the State of
13 New York, New York, New York,
14 for Defendants-Appellees.
15
16 DENNIS JACOBS, Chief Judge:

17 These putative class actions challenge the

18 constitutionality of the New York law, codified at N.Y.

19 Civil Practice Law & Rules 6501-6516 (“Article 65”), that

20 allows a plaintiff who brings a lawsuit claiming interest in

21 real property to file a lis pendens with respect to the

22 property. The lis pendens (also called a “notice of

23 pendency”) alerts future buyers or interest holders of a

24 prior claim. Plaintiffs argue, under Connecticut v. Doehr,

25 501 U.S. 1 (1991), that because the law does not give the

26 property owner prior notice or opportunity to be heard, it

27 violates the Fourteenth Amendment’s Due Process Clause.

28 Plaintiffs also challenge the law under the Equal Protection

29 Clause.

30 These appeals are taken from final judgments, entered

3
1 on April 28, 2005 and February 14, 2007, in the United

2 States District Court for the Southern District of New York

3 (Stein, J.), dismissing the actions for failure to state a

4 claim. Appeal is also taken from the denial of class

5 certification. We affirm because New York’s lis pendens law

6 as applied to plaintiffs does not offend the Constitution,

7 as construed by Doehr.

8

9 I

10 Under the common law, the pendency of a lawsuit (a lis

11 pendens) claiming an interest in real property constituted

12 constructive notice of the claim to the world. Whether or

13 not good faith purchasers had actual notice, they took the

14 property subject to the outcome of the action if they

15 acquired the property while the suit was pending. See

16 generally 13 Jack B. Weinstein, et al., New York Civil

17 Practice: CPLR ¶ 6501.01, at 65-4-4.1 (2008). This

18 “prevent[ed] a defendant from destroying the value of a

19 judgment in the plaintiff’s favor by conveying the disputed

20 property during the suit,” id. at 65-5, and “assure[d] that

21 a court retained its ability to effect justice by preserving

22 its power over the property,” 5303 Realty Corp. v. O & Y

4
1 Equity Corp., 64 N.Y.2d 313, 319, 476 N.E.2d 276, 280

2 (1984), quoted in In re Sakow, 97 N.Y.2d 436, 440, 767

3 N.E.2d 666, 669 (2002). Common law lis pendens attached

4 immediately upon service of process; no separate notice or

5 filing was required. “A potential purchaser of real

6 property was required to search all of the court records to

7 determine whether the land to be purchased or encumbered was

8 the subject of pending litigation.” 13 Weinstein, New York

9 Civil Practice: CPLR ¶ 6501.01, at 65-5.

10 To mitigate the burden imposed by the common law, New

11 York, like most states, replaced it by statute. The New

12 York lis pendens statute was first enacted in 1823. The

13 current version, codified in Article 65, provides that a

14 plaintiff in an action “in which the judgment demanded would

15 affect the title to, or the possession, use or enjoyment of

16 real property,” may file a notice of pendency with respect

17 to the real property that is the subject of the action. See

18 N.Y. C.P.L.R. 6501. Filing of the notice of pendency

19 effects constructive notice of the action: “A person whose

20 conveyance or incumbrance is recorded after the filing of

21 the notice is bound by all proceedings taken in the action

22 after such filing to the same extent as a party.” Id.

5
1 A notice of pendency must be filed “in the office of

2 the clerk of any county where property affected is

3 situated.” Id. 6511(a). A complaint that states a legally

4 sufficient claim affecting the real property must be filed

5 with the notice of pendency, unless the complaint was filed

6 previously. Id. 6501, 6511(a). Effectiveness of the

7 notice is conditional on the service of a summons on the

8 defendant property owner within 30 days. Id. 6512. The

9 notice is valid for three years, and may be extended for an

10 additional three years upon a showing of good cause prior to

11 expiration of the initial term. Id. 6513. As at common

12 law, “[t]he notice of pendency does not itself actually

13 restrain transfer of the property, as an incumbrance or a

14 lien: it merely provides notice that an action is pending

15 that may affect title to the property.” 13 Weinstein, New

16 York Civil Practice: CPLR ¶ 6501.11, at 65-24.

17 Cancellation of a notice of pendency is available under

18 two sections of the statute. Upon motion of “any person

19 aggrieved,” section 6514 provides for discretionary

20 cancellation “if the plaintiff has not commenced or

21 prosecuted the action in good faith,” and for mandatory

22 cancellation for specified failures to advance the

6
1 underlying action, pursuant to a stipulation, or upon final

2 disposition of the underlying lawsuit. N.Y. C.P.L.R.

3 6514(a),(b),(d). An order cancelling a notice of pendency

4 may direct the party who filed the notice “to pay any costs

5 and expenses occasioned by the filing and cancellation, in

6 addition to any costs of the action.” Id. 6514.1 Section

7 6515 provides that in all actions (except those seeking

8 mortgage foreclosures, partition, or dower), a property

9 owner may move to substitute a bond for the notice of

10 pendency if “adequate relief can be secured to the

11 plaintiff.” Id. 6515(1).

12 New York’s notice of pendency has been described as an

13 “extraordinary privilege,” Israelson v Bradley, 308 N.Y.

14 511, 516, 127 N.E.2d 313, 315 (1955), and a “unique

15 provisional remedy,” In re Sakow, 97 N.Y.2d at 441, 767

16 N.E.2d at 670, principally because it may be filed without

17 advance notice or prior judicial review, and does not depend

18 upon a showing that the plaintiff is likely to prevail on

19 the merits. See id. Accordingly, Article 65 is narrowly

1
A property owner who seeks damages for misuse of a
notice of pendency may also bring an action for malicious
prosecution or abuse of process. 13 Weinstein, New York
Civil Practice: CPLR ¶ 6514.11, at 65-71.

7
1 interpreted by New York courts, both as to its procedural

2 requirements and as to its substantive application. See

3 5303 Realty Corp., 64 N.Y.2d at 320-21, 476 N.E.2d at 281.

4 The many uses of the notice are set forth in the margin.2

5 Although a court must uphold a notice of pendency if the

6 underlying complaint sets forth a claim within the scope of

7 C.P.L.R. 6501, the court may evaluate the claim’s legal

8 sufficiency and, if facially insufficient, the court should

9 cancel the notice. See 13 Weinstein, New York Civil

10 Practice: CPLR ¶ 6501.05, at 65-11; Gallagher Removal Serv.,

11 Inc. v. Duchnowski, 179 A.D.2d 622, 623, 578 N.Y.S.2d 584,

12 585 (App. Div. 1992) (cancelling notice of pendency based on

2
A notice of pendency is mandatory in an action to
foreclose a mortgage or to quiet title. See 13 Weinstein,
New York Civil Practice: CPLR ¶ 6501.06, at 65-13. Filing of
a notice of pendency has been found proper in the following
types of actions: partition, ejectment, dower, specific
performance of a contract to convey an interest in real
property, to impress a lien upon real property, to compel
the reconveyance of an interest in specific real property,
to rescind a referee’s deed, to establish and enforce a
mechanic’s lien on real property, to establish the
plaintiff’s undivided interest in real property, to
foreclose a vendee’s or vendor’s lien, to convert a
purported deed into a mortgage, to set aside a fraudulent
conveyance, to enjoin violation of a zoning ordinance, to
enforce an easement, to void an agreement creating an
easement, in a stockholder’s derivative suit to compel the
reconveyance of real property to the corporation, to impress
a constructive trust on real property, and for an
accounting. See id. ¶ 6501.06, at 65-13-17.

8
1 an expired option to purchase property).

2

3 II

4 Jehed Diamond, Oscar Diaz and Joseph Betesh each

5 brought an action challenging New York’s notice of pendency

6 statute principally on due process grounds. The Diamond and

7 Betesh lawsuits were consolidated in the district court, and

8 their appeal from the dismissal of the consolidated action

9 was heard in tandem with the appeal from the dismissal of

10 the Diaz action. Unless otherwise indicated, the following

11 facts are taken from the three complaints and supporting

12 documents, which we assume to be true in reviewing a Federal

13 Rule of Civil Procedure 12(b)(6) dismissal. Reddington v.

14 Staten Island Univ. Hosp., 511 F.3d 126, 128 (2d Cir. 2007).

15

16 Diamond. Jehed Diamond and her husband together

17 purchased a home in Delaware County, New York. Although

18 title was in the husband’s name, the couple intended to hold

19 the property jointly as marital property pursuant to New

20 York’s domestic relations laws. In May 2002, Diamond

21 learned that her husband had secretly dissipated marital

22 assets to fuel a gambling addiction. Diamond immediately

9
1 demanded that her husband yield title to the marital home,

2 which was the only asset remaining from the marriage. On

3 May 17, 2002, her husband conveyed the deed to Diamond, who

4 was a bona fide purchaser for fair consideration.

5 Diamond contracted with a buyer for the property in

6 July 2002. Around the same time, Diamond learned that her

7 husband had obtained a series of personal loans from several

8 individuals, including their neighbor Christopher Jones. On

9 October 1, 2002, approximately six weeks before the

10 scheduled closing, Jones filed a lawsuit and a notice of

11 pendency in Delaware County pursuant to N.Y. C.P.L.R. 6501,

12 alleging that over the prior year he had loaned $90,000 to

13 Diamond’s husband in reliance on his verbal promise to repay

14 out of the proceeds from the eventual sale of the house, and

15 that the May 2002 transfer of the property to Diamond was a

16 fraudulent conveyance intended to evade repayment of the

17 loan (although Jones did not allege that Diamond knew of the

18 debt at the time). Jones’ complaint attached a promissory

19 note evidencing the debt.

20 Diamond filed an order to show cause in state court,

21 seeking to vacate the notice, and the state court set a

22 hearing for the day before the closing. In order to induce

10
1 Jones to lift the notice of pendency in time to allow

2 Diamond to complete the sale of the property, Diamond agreed

3 to place $100,000 from the sale of the property in escrow

4 pending the outcome of Jones’ lawsuit. Accordingly, the

5 notice of pendency was cancelled, and the sale closed on

6 schedule. Diamond’s federal complaint alleges, however,

7 that the adverse effect of the notice was perpetuated in the

8 ensuing litigation between Diamond and Jones over the escrow

9 agreement. As the record on appeal arguably reflects,

10 Diamond’s constitutional and other defenses were rejected by

11 the state court; the escrow agreement weakened Diamond’s

12 leverage in settlement negotiations; and she ended up paying

13 Jones most of the money in escrow.

14 In June 2003, Diamond filed a complaint (the first of

15 the three class action complaints at issue here), asserting

16 claims under 42 U.S.C. § 1983 on the ground that Article 65

17 permits the deprivation of property without due process, and

18 illegally discriminates against married persons who are

19 creditors of their spouses by depriving them of access to

20 lis pendens procedures available to non-spousal creditors.

21 The complaint also alleged violations of Diamond’s New York

22 state constitutional rights to due process and equal

11
1 protection. The complaint named as defendants New York’s

2 governor, attorney general and comptroller (individually and

3 in their official capacities), the Delaware County Clerk in

4 his official capacity, and Mr. Jones. Diamond sought

5 preliminary and permanent injunctive relief, declaratory

6 relief, actual and punitive damages, and costs and fees.

7

8 Diaz. In 2003, after Oscar Diaz fell behind in

9 payments on his home mortgage, Churchill Mortgage Investment

10 Corporation foreclosed and filed a notice of pendency in

11 Bronx County. Diaz alleges in his complaint that he had

12 various predatory lending defenses and state law claims of

13 deceptive practices.

14 In December 2003, Diaz (represented by the same counsel

15 as Diamond), filed a federal putative class action complaint

16 that was referred as a related case to Judge Stein. The

17 Diaz complaint alleged federal due process and equal

18 protection violations, seeking the same relief as Diamond

19 (but did not assert state law claims). The complaint named

20 the same state defendants, the Bronx County Clerk, and

21 Churchill. In March 2005, Diaz’s counsel advised the

22 district court that a sale had been negotiated to pay off

12
1 the mortgage, and that the state foreclosure action would be

2 dismissed and the notice of pendency cancelled. Diaz

3 continued to prosecute the federal action, on the theory

4 that the notice of pendency compelled him to sell his home

5 at a price below market.

6

7 Betesh. In 1996, Joseph Betesh exercised a power of

8 attorney granted by his mother to transfer to himself his

9 mother’s two-family house in East Elmhurst, New York. His

10 mother died sometime later. In June 2004, the house was

11 damaged by fire and rendered largely uninhabitable. In

12 August 2004, Betesh signed a $60,000 loan commitment for a

13 home equity loan at a New York City-subsidized interest

14 rate. On August 12, 2004, Betesh’s brother filed a lawsuit

15 and notice of pendency in Queens County alleging that the

16 1996 transfer had been improper because the power of

17 attorney was invalid. Betesh was soon informed that he

18 could not receive the home equity loan because of the notice

19 of pendency.

20 In October 2004, Betesh, acting pro se, filed an order

21 to show cause in state court to dismiss his brother’s action

22 and to revoke the notice of pendency; but relief was denied

13
1 on procedural grounds. Betesh then retained a lawyer, who

2 moved to dismiss the state court action and vacate the

3 notice on state law grounds, including that the suit was

4 time-barred. That motion was pending when, in May 2005,

5 Betesh filed his federal putative class-action complaint,

6 alleging the same federal due process claim made in the

7 Diamond and Diaz complaints, but not alleging equal

8 protection or state law claims. The complaint named the

9 same state defendants, the Queens County Clerk, and Betesh’s

10 brother. Betesh sought the same relief as the other

11 plaintiffs. He seeks damages on the theory that he lost

12 rent because the notice of pendency interfered with the

13 repair of the house.

14 After the federal complaint was filed, the state court

15 action against Betesh was dismissed, and the notice of

16 pendency was ultimately cancelled.

17

18 III

19 The first of the federal complaints was filed by

20 Diamond in June 2003, and was dismissed in September 2003

21 under the Rooker-Feldman doctrine, on the ground that

22 Diamond was seeking review of the state court judgments

14
1 concerning the same constitutional issues. See District of

2 Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983);

3 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923). While

4 Diamond’s appeal was pending, the same counsel filed the

5 Diaz action, which elided the Rooker-Feldman objection

6 because Diaz had not litigated the constitutional issues in

7 state court. The Diaz action was assigned to the same judge

8 as a related case. In March 2005, counsel advised the court

9 that Diaz had arranged to sell his home and to remove the

10 notice of pendency, developments that would render moot the

11 request for injunctive relief. In order to preserve a claim

12 for injunction, counsel identified Betesh as a potentially

13 suitable plaintiff, and moved on his behalf to intervene in

14 the Diaz action.3

15 Betesh’s motion was never decided because in April 2005

3
As noted above, the lis pendens notices in all three
underlying actions ultimately were cancelled, rendering moot
plaintiffs’ claims in federal court for injunctive relief.
However, these appeals are not moot insofar as plaintiffs
seek damages. See Loyal Tire & Auto Ctr., Inc. v. Town of
Woodbury, 445 F.3d 136, 150-51 (2d Cir. 2006). Because we
uphold the constitutionality of the New York statute, we do
not need to consider whether the moot claims for injunctive
relief were nonetheless justiciable under the exception for
harms that are “capable of repetition, yet evading review.”
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)
(internal quotation marks omitted).

15
1 the district court dismissed the Diaz complaint under Rule

2 12(b)(6). See Diaz v. Pataki, 368 F. Supp. 2d 265 (S.D.N.Y.

3 2005). The court held that: (1) Diaz’s claim for

4 injunctive relief was mooted by the sale of the property,

5 id. at 269-70; (2) the claim for money damages against state

6 officials failed because there was no allegation of personal

7 involvement and because the Eleventh Amendment bars such

8 relief against government defendants, id. at 270-71; (3)

9 Diaz’s claim for declaratory relief on equal protection

10 grounds failed because Article 65 is not discriminatory on

11 its face and because there was no allegation of illegal

12 discrimination in connection with the application of the

13 statute in Diaz’s case, id. at 272; (4) the facial challenge

14 to the statute failed because Diaz did not allege facts

15 showing there exists no set of circumstances under which the

16 statute would be valid, id. at 274-75; and (5) Diaz’s as-

17 applied challenge failed under the three-part analysis set

18 forth in Connecticut v. Doehr, 501 U.S. 1, 11 (1991), id. at

19 276-78. Betesh thereafter filed his separate class-action

20 complaint.

21 In July 2005, Diamond’s appeal was resolved by a remand

22 after the Supreme Court decided Exxon Mobil Corp. v. Saudi

16
1 Basic Indus. Corp., 544 U.S. 280 (2005), which rendered the

2 Rooker-Feldman doctrine plainly inapplicable to Diamond’s

3 case. Diaz was allowed to withdraw his appeal of the

4 dismissal order without prejudice to reactivation after a

5 final decision in the Diamond and Betesh cases.

6 In August 2006, the district court consolidated the

7 Diamond and Betesh cases, and denied a motion for class

8 certification on the ground that the proposed class

9 representatives did not have claims or defenses “typical of

10 the claims or defenses of the class.” See Fed. R. Civ. P.

11 23(a)(3). In February 2007, the district court dismissed

12 the Diamond/Betesh action under Rule 12(b)(6), for

13 essentially the same reasons as set forth in its Diaz

14 opinion. See Diamond v. Pataki, No. 03 Civ. 4642, 2007 WL

15 485962 (S.D.N.Y. Feb. 14, 2007).

16 The Diamond/Betesh appeal is now heard in tandem with

17 the reactivated Diaz appeal. Five issues are presented:

18 (1) whether New York’s lis pendens statute violates due

19 process, on its face or as applied, by failing to provide

20 notice and an opportunity to be heard; (2) whether the

21 statute unconstitutionally discriminates against women in

22 violation of equal protection; (3) whether the statute

17
1 violates the fundamental right of access to the courts;

2 (4) whether state officials involved in the operation of the

3 lis pendens law are entitled to qualified immunity; and

4 (5) whether to certify a putative plaintiff class of

5 property owners subject to the law and a putative defendant

6 class of all county clerks. We decide the first two

7 questions, and hold that Article 65 does not offend either

8 federal due process or equal protection guarantees. We do

9 not consider whether Article 65 obstructs access to the

10 courts because this issue is raised for the first time on

11 appeal. See Bogle-Assegai v. Connecticut, 470 F.3d 498, 504

12 (2d Cir. 2006). Because we affirm the dismissal of the

13 complaints, we do not reach the issues of qualified immunity

14 or class certification.

15

16 IV

17 The grant of a motion to dismiss is reviewed de novo.

18 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300

19 (2d Cir. 2003).

20

21 A. Due Process

22 “Parties whose rights are to be affected” are entitled

18
1 to “notice and an opportunity to be heard . . . at a

2 meaningful time and in a meaningful manner.” Fuentes v.

3 Shevin, 407 U.S. 67, 80 (1972) (internal quotation marks

4 omitted). Evaluation of due process challenges to statutes

5 affecting property interests traditionally has required a

6 two-part analysis: (1) does the statute authorize the

7 deprivation of a “significant property interest” protected

8 by the Fifth Amendment, id. at 86; and (2) if so, what

9 process is due in the particular circumstances, Mathews v.

10 Eldridge, 424 U.S. 319, 334 (1976). See also Ford Motor

11 Credit Co. v. NYC Police Dep’t, 503 F.3d 186, 190 (2d Cir.

12 2007).

13 As to the first inquiry, defendants argue that the

14 filing of a notice of pendency does not trigger due process

15 scrutiny because it does not deprive plaintiffs of property:

16 a notice of pendency creates no property right in another

17 party and merely prevents the seller from withholding the

18 fact that there are adverse claims to the realty; it is the

19 underlying lawsuit that potentially affects the owner’s

20 property interest. Defendants principally rely on criminal

21 forfeiture cases that, in dicta, deem lis pendens a “less

22 restrictive” alternative to the ex parte seizures of

19
1 property that violate due process. See, e.g., United States

2 v. James Daniel Good Real Prop., 510 U.S. 43, 62 (1993);

3 United States v. 4492 S. Livonia Rd., 889 F.2d 1258, 1265

4 (2d Cir. 1989) (same); cf. Kirby Forest Indus., Inc. v.

5 United States, 467 U.S. 1, 15 (1984) (“It is certainly

6 possible . . . that the initiation of condemnation

7 proceedings, publicized by the filing of a notice of lis

8 pendens, reduced the price that the land would have fetched,

9 but impairment of the market value of real property incident

10 to otherwise legitimate government action ordinarily does

11 not result in a taking.”).

12 The cited cases (which in any event do not involve a

13 direct challenge to a lis pendens statute) must be read in

14 light of Doehr, which held that due process concerns may be

15 triggered by something less than “a complete, physical, or

16 permanent deprivation of real property.” Doehr, 501 U.S. at

17 12. “[E]ven the temporary or partial impairments to

18 property rights that attachments, liens, and similar

19 encumbrances entail are sufficient to merit due process

20 protection.” Id.

21 A notice of pendency is arguably such a “similar

22 encumbrance”--though two circuit courts have ruled

20
1 otherwise.4 In any event, we need not decide whether a lis

2 pendens effects a “significant taking of property,” Fuentes,

3 407 U.S. at 86, because we conclude, in deciding what

4 process would be due, that New York’s lis pendens statute

5 provides all the process that is due in respect of the

6 claimed property interests at stake. In so holding, we rely

7 on the framework set forth in Doehr for analyzing due

8 process objections to prejudgment remedies.

9 Doehr, a challenge to Connecticut’s prejudgment

10 attachment statute, arose from an assault and battery tort

4
See United States v. Register, 182 F.3d 820, 837
(11th Cir. 1999) (“[A] filing of a lis pendens pursuant to
state statute does not constitute a ‘seizure’ and does not
affect property interests to an extent significant enough to
implicate the Due Process Clause of the Fifth Amendment.”);
Aronson v. City of Akron, 116 F.3d 804, 811 (6th Cir. 1997)
(“In addition to impairing the owner’s ability to sell his
interest in the property, a lis pendens [like the corrupt
activity lien under consideration, which does not
‘constitute a seizure of property in the ordinary sense of
that term’] . . . may taint the owner’s credit rating, may
place an existing mortgage in technical default, may make it
impossible to obtain a second mortgage, and may have other
adverse consequences. But . . . this would not trigger the
notice and hearing requirement.” (emphasis added) (internal
quotation marks omitted)) ; cf. United States v. Jarvis, 499
F.3d 1196, 1203 (10th Cir. 2007) (“The [lis pendens] notice
is intended to preserve the property rights in existence at
the time the litigation commences, but does not create new
or additional property rights.”). A district court in this
Circuit decided pre-Doehr that a lis pendens is not “a
taking for due process purposes.” See United States v.
Rivieccio, 661 F. Supp. 281, 297 (E.D.N.Y. 1987).

21
1 claim. The victim sued Doehr, the alleged assailant, and

2 filed a $75,000 notice of attachment on Doehr’s home as

3 security for any judgment. See Doehr, 501 U.S. at 5. At

4 the time, Connecticut law authorized prejudgment attachment

5 of real estate without affording the owner notice or prior

6 hearing or bond, as long as the plaintiff in the underlying

7 suit, or “some competent affiant,” verified that there is

8 probable cause to sustain the plaintiff’s claims. Id. at 5

9 (internal quotation marks omitted). The attachment effected

10 a seizure of the property, impairing Doehr’s ability to sell

11 or encumber it, although not preventing continued use and

12 enjoyment. Only after the sheriff attached the property did

13 Doehr receive service of the complaint in the underlying

14 action, and the notice of attachment. Id. at 7. Doehr

15 argued that the statute as applied to him violated due

16 process, and the Supreme Court agreed. Id. at 13-18.

17 To ascertain whether and what process was due, the

18 Doehr Court adapted the Mathews balancing test (employed in

19 cases of government deprivation of property), to govern

20 private disputes in which one party enlists the state to

21 assert prejudgment control over the other party’s property.

22 Doehr, 501 U.S. at 10. The Doehr test examines three

22
1 factors:

2 first, consideration of the private
3 interest that will be affected by the
4 prejudgment measure; second, an
5 examination of the risk of erroneous
6 deprivation through the procedures under
7 attack and the probable value of
8 additional or alternative safeguards; and
9 third, . . . principal attention to the
10 interest of the party seeking the
11 prejudgment remedy, with, nonetheless,
12 due regard for any ancillary interest the
13 government may have in providing the
14 procedure or forgoing the added burden of
15 providing greater protections.

16 Id. at 11.

17 Applying that test, the Court first found significant

18 impact on Doehr’s private interest: tainted credit rating,

19 clouded title, and impaired ability to alienate the

20 property. Id.

21 Second, as to the risk of erroneous deprivation, the

22 “probable cause” standard for obtaining an attachment order

23 was deemed “one-sided, self-serving, and conclusory.” Id.

24 at 14. Because probable cause required only a facially

25 valid complaint, the statute allowed “deprivation of the

26 defendant’s property when the claim would fail to convince a

27 jury[ or] when it rested on factual allegations that were

28 sufficient to state a cause of action but which the

29 defendant would dispute.” Id. at 13-14. The likelihood of

23
1 error was heightened in the context of intentional tort

2 actions seeking indefinite damages, and insufficiently

3 mitigated by the availability of a post-attachment

4 adversarial hearing. Id. at 14-15.

5 Third, the Court concluded that the interests of the

6 tort plaintiff in the ex parte attachment of the house were

7 “minimal” because the assault and battery claim bore no

8 relation to the real property, and the “plaintiff had no

9 existing interest in Doehr’s real estate when he sought the

10 attachment.” Id. at 16. The Court considered that no

11 “exigent circumstance” had been identified, such as a claim

12 that Doehr was about to take steps that would render his

13 property unavailable to satisfy a judgment, id.; that

14 Connecticut was one of only three states to authorize

15 attachment “in situations that do not involve any

16 purportedly heightened threat to the plaintiff’s interest,”

17 id. at 18; and that “accurate ex parte assessments of the

18 merits,” which are feasible in commercial disputes, are hard

19 to make when the claim sounds in tort, id. at 17.

20 Because all three Doehr factors raised substantial due

21 process concerns, the Court concluded that the statute was

24
1 unconstitutional as applied in that case.5

2 Chief Justice Rehnquist filed a concurrence to

3 emphasize that the Court’s holding did not disturb settled

4 law upholding the constitutionality of prejudgment remedies

5 where the plaintiff had a pre-existing interest in the

6 property, such as a mechanic’s lien or a lis pendens. See

7 Doehr, 510 U.S. at 27-29 (Rehnquist, C.J., concurring)

8 (citing Spielman-Fond, Inc. v. Hanson’s, Inc., 379 F. Supp.

9 997, 999 (D. Ariz. 1973), aff’d by 417 U.S. 901 (1974), and

10 Bartlett v. Williams, 464 U.S. 801 (1983) (dismissing

11 Williams v. Barlett, 189 Conn. 471, 457 A.2d 290 (1983),

12 “for want of a substantial federal question”)).

13 This Circuit has similarly interpreted the Doehr

14 majority to have rested its due process holding on the

15 application of Connecticut’s statute to an intentional

16 tortfeasor, as opposed to a creditor with an existing

17 interest in the property. See Shaumyan v. O’Neill, 987 F.2d

18 122, 126-27 (2d Cir. 1993) (upholding the same Connecticut

19 statute as applied to contractor’s claim for payment of “an

5
A four-member plurality also reached the non-
precedential conclusion that the absence of a bond
requirement in the Connecticut statute violated due process.
See Doehr, 501 U.S. at 18-23 (White, J., concurring).

25
1 outstanding sum certain” for completed repairs to attached

2 property); cf. British Int’l Ins. Co. v. Seguros La

3 Republica, S.A., 212 F.3d 138, 144 & n.3 (2d Cir. 2000) (per

4 curiam) (stating in dicta that a claim for a contractually-

5 defined sum “appears to fall into the category of cases

6 cited in Doehr as ‘lend[ing] themselves to accurate ex parte

7 assessments of the merits’” (quoting Doehr, 501 U.S. at

8 17)).

9 In applying Doehr to this case, we consider the

10 material distinctions between the Connecticut statute in

11 Doehr and New York statute at issue here, and remain mindful

12 that “[d]ue process is inevitably a fact-intensive inquiry.”

13 Krimstock v. Kelly, 306 F.3d 40, 51 (2d Cir. 2002).

14 1. The first Doehr consideration is the effect of the

15 statutory imposition on the property owner’s private

16 interest. Lis pendens, unlike attachment is “a well-

17 established, traditional remedy,” the effect of which “is

18 simply to give notice to the world of the remedy being

19 sought in the lawsuit itself” and which “creates no

20 additional right in the property on the part of the

21 plaintiff.” Doehr, 501 U.S. at 29 (Rehnquist, C.J.,

22 concurring); see 13 Weinstein, New York Civil Practice: CPLR

26
1 ¶ 6501.11, at 65-24 (describing New York notice of pendency

2 statute in similar terms). Accordingly, the owner of

3 property subject to a lis pendens continues to be able to

4 inhabit and use the property, receive rental income from it,

5 enjoy its privacy, and even alienate it. See, e.g., Kirby

6 Forest Indus., Inc., 467 U.S. at 15. For this reason, lis

7 pendens is deemed one of the “less restrictive” means of

8 protecting a disputed property interest. See James Daniel

9 Good Real Prop., 510 U.S. at 62; 4492 S. Livonia Rd., 889

10 F.2d at 1265. The impact of New York’s lis pendens statute

11 is further mitigated because it is available only in actions

12 “in which the judgment demanded would affect the title to,

13 or the possession, use or enjoyment of, real property,” N.Y.

14 C.P.L.R. 6501--a standard that is strictly construed. See

15 5303 Realty Corp., 64 N.Y.2d at 321, 476 N.E.2d at 281.

16 Nevertheless, plaintiffs allege that the marketability

17 of their property was compromised before they were afforded

18 an opportunity to contest the lis pendens. The following

19 loss and detriment is claimed: Diaz sold his home only

20 after some delay and compromise; Betesh could not get a

21 construction loan; and Diamond, though she sold her property

22 on schedule, suffered detriments arising out of the

27
1 alternative security she had to provide. We decline to look

2 behind these claims at this preliminary stage of

3 proceedings.6 We therefore conclude that the first Doehr

4 factor supports plaintiffs’ position, although not so

5 decisively as in Doehr.

6 2. The second Doehr factor assesses the risk that a

7 notice of pendency would be wrongfully filed under existing

8 procedures, and the probable value of additional statutory

9 safeguards. In Doehr, a substantial risk of error was

10 created by the nature of the underlying claim: an

11 intentional tort that had no connection to the property and

12 did not “readily lend [itself] to accurate ex parte

13 assessment[] of the merits.” Doehr, 501 U.S. at 17. See

14 also Shaumyan, 987 F.2d at 126 (reading Doehr to disapprove

15 attachment procedure that “did not protect the [property

16 owner] against the uncertainties that are associated with

17 intentional tort cases”).

6
The validity of these claims is contestable: It is
unclear why Diaz should have been able to delay notice to
potential buyers that the property was subject to a mortgage
lien and was in foreclosure, or why Betesh should have been
able to delay disclosure of his brother’s claim from the New
York City-subsidized lender; and Diamond’s only detriment
was to pay part of the proceeds to discharge a debt she was
found to owe.

28
1 By contrast, the risk of erroneous deprivation is

2 minimal under the New York lis pendens procedure, which is

3 available only to claimants asserting a defined interest in

4 the property. The three lis pendens here were filed by

5 creditors whose claims were pre-existing, readily

6 quantifiable, and largely susceptible to proof by

7 documentary evidence: Diamond’s property was subject to a

8 promissory note for a sum certain; Diaz’s property was

9 subject to a mortgage; Betesh’s property was subject to a

10 claim for half-ownership by a brother who contested the

11 validity of the documents used to transfer the property to

12 Betesh. Defenses notwithstanding, the underlying claims

13 (unlike tort claims) involved relatively “‘uncomplicated

14 matters that lend themselves to documentary proof.’” Doehr,

15 501 U.S. at 14 (quoting Mitchell v. W.T. Grant Co., 416 U.S.

16 600, 609 (1974) (upholding ex parte sequestration based on

17 vendor’s lien that could be determined on the documentary

18 record)).

19 The risk of error was further reduced by Article 65’s

20 procedural safeguards. Plaintiffs contend that the statute

21 does not protect the property owner by notice and a

22 sufficient opportunity to challenge the lis pendens, or by

29
1 the posting of bond. As to notice, the statute requires

2 service of a summons within 30 days after filing a lis

3 pendens in order to preserve it, thus apprising the property

4 owner of a claim against the property. See N.Y. C.P.L.R.

5 6512. As to opportunity to be heard, the statute provides

6 for a hearing to challenge the lis pendens, and for

7 cancellation of the lis pendens upon a showing that the

8 plaintiff in the underlying lawsuit “has not commenced or

9 prosecuted the action in good faith.” Id. 6514(b); see,

10 e.g., Josefsson v. Keller, 141 A.D.2d 700, 701, 530 N.Y.S.2d

11 10, 11 (App. Div. 1988). Notice and hearing are afforded

12 post-deprivation; but such procedural safeguards suffice

13 where “the nature of the issues at stake minimizes the risk”

14 of wrongful deprivation. Mitchell, 416 U.S. at 609-10; see

15 also Shaumyan, 987 F.2d at 127 (upholding procedural

16 safeguards “similar to those in the statute that was upheld

17 in Mitchell”).

18 The scope of a court’s review when asked to cancel a

19 notice of pendency pursuant to C.P.L.R. 6514(b) appears to

20 have once been unclear. In 1983, one lower court in New

21 York held that due process required consideration of the

22 merits of the underlying action. Hercules Chem. Co. v. VCI,

30
1 Inc., 118 Misc. 2d 814, 826, 462 N.Y.S.2d 129, 137 (Sup. Ct.

2 1983). But the New York Court of Appeals subsequently held

3 that “the court’s scope of review” when considering whether

4 to cancel a notice of pendency pursuant to C.P.L.R. 6514(b)

5 “is circumscribed,” so that “likelihood of success on the

6 merits is irrelevant . . . .” 5303 Realty Corp., 64 N.Y.2d

7 at 320, 476 N.E.2d at 280.

8 Some other states have enacted lis pendens statutes

9 that require more than a showing of good faith. For

10 example, Connecticut requires that the filer of the notice

11 “establish that there is probable cause to sustain the

12 validity of his claim,” Conn. Gen. Stat. 52-325b(a); New

13 Jersey requires the showing of “a probability that final

14 judgment will be entered in favor of the plaintiff,”

15 N.J.Stat. Ann. 2A-15-7(b); and Nevada requires that the

16 party who seeks a notice of pendency must show that he is

17 “likely to prevail” in the underlying suit. Nev. Rev. Stat.

18 Ann. 14.015. 7

19 The Supreme Court has noted the danger of allowing the

7
The plaintiffs advise that legislation is currently
pending in the New York State Legislature which would
“expand the grounds on which to vacate” a notice of pendency
in some unspecified fashion.

31
1 issuance of an attachment without a sufficient examination

2 of the merits of the underlying suit:

3 Permitting a court to authorize
4 attachment merely because the plaintiff
5 believes the defendant is liable, or
6 because the plaintiff can make out a
7 facially valid complaint, would permit
8 the deprivation of the defendant’s
9 property when the claim would fail to
10 convince a jury, when it rested on
11 factual allegations that were sufficient
12 to state a cause of action but which the
13 defendant would dispute, or in the case
14 of a mere good-faith standard, even when
15 the complaint failed to state a claim
16 upon which relief could be granted.
17
18 Doehr, 501 U.S. at 13-14 (emphasis added). This statement

19 is dicta, however; and we cannot say that C.P.L.R. 6514(b)’s

20 employment of “a mere good-faith standard” constitutes a

21 violation of due process. At the same time, this standard

22 does not afford the most meaningful process to a property

23 holder burdened by a notice of pendency filed in conjunction

24 with a patently meritless law suit.

25 We similarly reject plaintiffs’ assertion that the

26 statute’s procedure for substituting a bond is defective.

27 See N.Y. C.P.L.R. 6515. Plaintiffs argue that due process

28 requires that the notice filer also post a bond in every

29 case. However, only a plurality of the Court in Doehr

30 reached the issue of the significance of a bond requirement,

32
1 see 501 U.S. at 18-23 (White, J., concurring), and this

2 Circuit “has continued to adhere to our previously

3 established position that a security bond need not be posted

4 in connection with a prejudgment attachment in order to

5 satisfy the requirements of due process.” Result Shipping

6 Co. v. Ferruzzi Trading USA Inc., 56 F.3d 394, 402 (2d Cir.

7 1995). On the whole, the second Doehr factor weighs in

8 favor of upholding the constitutionality of Article 65.

9

10 3. The last Doehr factor considers the interest of the

11 claimant and the state. Doehr, 501 U.S. at 11. The Doehr

12 Court discounted the interest of a claimant who had no pre-

13 existing stake in the attached property and no asserted

14 basis for fearing that the attached property might become

15 unavailable during the pendency of the underlying lawsuit.

16 Id. at 16. By contrast, lis pendens in New York is

17 available only to secure claims of existing interests in the

18 realty at issue. See Mitchell, 416 U.S. at 604 (observing

19 that when the property owner and the creditor both have

20 “current, real interests in the property, . . . [r]esolution

21 of the due process question must take account not only of

22 the interests of the [owner] of the property but those of

33
1 the [creditor] as well”). The claimant’s interest carries

2 more weight here than in Doehr.8

3 Likewise, New York has greater interest in the

4 prejudgment remedy than Connecticut had in Doehr. By

5 securing the unique property that is the subject matter of

6 the litigation, the New York lis pendens procedure protects

7 the court’s power over the disposition of that property.

8 See 5303 Realty Corp., 64 N.Y.2d at 319, 476 N.E.2d at 280.

9 Without lis pendens, actions such as those brought against

10 plaintiffs here could be frustrated by transfer or

11 encumbrance of the property in favor of an innocent third

12 party who lacked notice. “If the power of the courts to

13 determine the rights of the parties to real property could

14 be defeated by its transfer, pendente lite, to a purchaser

15 without notice, additional litigation would be spawned and

16 the public’s confidence in the judicial process could be

8
Moreover, in two of the underlying actions, the
notice of pendency was filed after the property owner
attempted to transfer or encumber the property. Diamond had
already entered a contract for sale of her property, and
Betesh had applied for a home equity loan, when notices of
pendency were filed to preserve the property. The prospect
of imminent alienation of the property at stake in the
underlying lawsuit “would be an exigent circumstance
permitting postponing any notice or hearing until after the
attachment is effected.” Doehr, 501 U.S. at 16.

34
1 undermined.” Chrysler Corp. v. Fedders Corp., 670 F.2d

2 1316, 1329 (3d Cir. 1982). Taken together, the interests of

3 the claimant and the state in the availability of the lis

4 pendens remedy are substantial, and weigh in favor of the

5 constitutionality of the statute.

6 We conclude, as to all of the plaintiffs, that their

7 property interest as affected by the lis pendens carries

8 some weight, but it is outweighed by the remaining

9 considerations. In view of the procedural safeguards of

10 Article 65--in particular its narrow application to pre-

11 existing claims affecting the property, and its provisions

12 for post-deprivation notice and hearing--the statute

13 satisfies the Due Process Clause of the Fourteenth

14 Amendment.

15 Because plaintiffs have failed to plead facts

16 establishing that Article 65 is unconstitutional as applied

17 to them, they necessarily fail to state a facial challenge,

18 which requires them to “‘establish that no set of

19 circumstances exists under which the [statute] would be

20 valid.’” Cranley v. Nat’l Life Ins. Co. of Vermont, 318

21 F.3d 105, 110 (2d Cir. 2003) (quoting United States v.

22 Salerno, 481 U.S. 739, 745 (1987)); see also Shaumyan, 987

35
1 F.2d at 126 (following Doehr in conducting only an as-

2 applied analysis of the statute). Therefore, we affirm the

3 district court’s dismissal of the due process claims.

4

5 B. Equal Protection

6 Plaintiffs argue that New York’s lis pendens law

7 violates the Equal Protection Clause of the Fourteenth

8 Amendment because it “discriminates against married persons

9 who are creditors of their spouses by depriving them of the

10 protections, rights, and remedies granted non-spousal

11 creditors without any rational basis.” (Diamond Compl.

12 ¶ 68.) Plaintiffs assert this claim on behalf of Diamond

13 alone, alleging that she, “as a creditor of [her husband]

14 stands in a disadvantaged position vis a vis Jones” because

15 Jones “was able to place a lis pendens on the marital

16 residence” whereas Diamond could not. (Diamond Compl.

17 ¶ 56.)9

18 Article 65 is facially neutral: it does not refer to

19 marital status or distinguish in any way between spousal and

9
Diaz asserted an equal protection claim, but it was
abandoned on appeal; we therefore do not review the district
court’s dismissal of that count. See LoSacco v. City of
Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).

36
1 non-spousal creditors; it does not stop one spouse from

2 using the procedure against the other; and it does not

3 exclude marital property. A facially neutral statute

4 violates equal protection only if it “has been applied in an

5 intentionally discriminatory manner” or “has an adverse

6 effect and . . . was motivated by discriminatory animus.”

7 Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir. 2000);

8 see also Harris v. McRae, 448 U.S. 297, 323 n.26 (1980)

9 (“[W]hen a facially neutral . . . statute is challenged on

10 equal protection grounds, it is incumbent upon the

11 challenger to prove that Congress selected or reaffirmed a

12 particular course of action at least in part ‘because of,’

13 not merely in ‘spite of,’ its adverse effects upon an

14 identifiable group.” (internal quotation marks omitted)).

15 Diamond’s complaint does not allege intentional

16 discrimination in the application or effect of Article 65.

17 Accordingly, the district court held that she failed

18 adequately to plead an equal protection claim. See Diamond

19 v. Pataki, No. 03 Civ. 4642, 2007 WL 485962, at *6 (S.D.N.Y.

20 Feb. 14, 2007).

21 On appeal, Diamond argues that the statute has been

22 interpreted by New York courts to bar a spouse-creditor

37
1 (such as Diamond) from placing a lis pendens on the marital

2 residence. Diamond cites New York matrimonial cases holding

3 that a spouse is not entitled to file a lis pendens in order

4 to secure equitable distribution of property. See, e.g.,

5 Fakiris v. Fakiris, 177 A.D.2d 540, 543, 575 N.Y.S.2d 924,

6 927 (App. Div. 1991); Gross v. Gross, 114 A.D.2d 1002, 1003,

7 495 N.Y.S.2d 441, 443 (App. Div. 1985).

8 The cases cited by Diamond stand only for the

9 proposition that under New York law, a claim for equitable

10 distribution does not seek a judgment that affects the

11 property in a manner contemplated by Article 65. See Gross,

12 114 A.D.2d at 1003, 495 N.Y.S.2d at 443 (“The fact that

13 plaintiff may be entitled to an equitable distribution with

14 regard to the residence does not give rise to [the

15 extraordinary] privilege [of filing of a notice of

16 pendency].”); Fakiris, 177 A.D.2d at 543, 575 N.Y.S.2d at

17 927 (citing Gross for same); see also Sehgal v. Seghal, 220

18 A.D.2d 201, 201, 631 N.Y.S.2d 360, 361 (App. Div. 1995) (“A

19 claim that real property is a marital asset subject to

20 distribution does not, by itself, establish grounds for a

21 lis pendens.”). The “narrow application” of Article 65,

22 5303 Realty Corp., 64 N.Y.2d at 315, 476 N.E.2d at 278, and

38
1 not any discriminatory intent, is the reason lis pendens is

2 unavailable in connection with a claim for equitable

3 distribution.

4 Furthermore, it is well-settled under New York law that

5 spouses may avail themselves of Article 65 to file notices

6 of pendency against each other--in those cases that “would

7 affect the title to, or the possession, use or enjoyment of,

8 real property,” N.Y. C.P.L.R. 6501. See, e.g., Caruso,

9 Caruso & Branda, P.C. v. Hirsch, 41 A.D.3d 407, 409, 837

10 N.Y.S.2d 734, 736 (App. Div. 2007) (noting availability of

11 lis pendens in divorce action where one spouse alleged

12 fraudulent conveyance and sought imposition of a

13 constructive trust against the other’s property); Elghanayan

14 v. Elghanayan, 102 A.D.2d 803, 804, 477 N.Y.S.2d 163, 163-64

15 (App. Div. 1984) (same); Bennett v. Bennett, 62 A.D.2d 1154,

16 1154-55, 404 N.Y.S.2d 171, 172-73 (App. Div. 1978) (lis

17 pendens available in former wife’s action to set aside ex-

18 husband’s conveyance of his share in realty that they had

19 previously owned by the entirety); Ventura v. Ventura, 27

20 Misc. 2d 338, 339, 211 N.Y.S.2d 227, 228 (Sup. Ct. 1960)

21 (lis pendens available in spouse’s action to impose

22 equitable lien).

39
1 Diamond never brought the type of action against her

2 husband that would have entitled her to file a notice of

3 pendency; Jones did. Thus the disparity between the

4 remedies at their disposal was not the result of statutory

5 discrimination, but of the parties’ claims and litigation

6 choices.

7 As Article 65 poses no bar--on its face or in its

8 operation--to spousal lis pendens in claims cognizable under

9 the statute, we affirm the district court’s dismissal of the

10 equal protection claim.

11

12 Conclusion

13 For the foregoing reasons, the judgment of the district

14 court is affirmed.

40