Plaintiff,

v. MEMORANDUM OPINION

LOLITA REALITY et al.,

Defendants.

KEVIN MCNULTY, U.S.D.J.:

This matter comes before the Court on a motion by Arthur Glatman to

dismiss Mamdouh Hussein’s Second Amended Complaint (“SAC”). Generally,

Plaintiff Hussein alleges that his apartment building’s superintendent, Jose

Marrero, harassed and attacked him on multiple occasions; that his landlords

failed to protect him; and that these defendants and the landlord’s attorney,

Arthur Glatman, attempted to use the courts to intimidate and silence him.

The SAC alleges violations by these defendants under 42 U.S.C. § 3601 (the

Fair Housing Act), as well as state law claims of assault, battery, intentional

infliction of emotional distress, and malicious prosecution.

The motion cites several bases for dismissal of the SAC, including Fed. R.

Civ. Proc. 12(b)(6), statute of limitations, ripeness, and defective service. The

Court, however, finds that the only federal claim in the complaint, brought

under the Fair Housing Act (“FHA”), is barred by res judicata. I therefore, sua

sponte, dismiss the FHA claim, and will further decline to exercise

supplemental jurisdiction over Hussein’s remaining state law claims.

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(

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to provide services because of

ethnicity under the Fair Housing Act, 42 U.S.C. § 3601 (SAC ¶11 58 - 63); (2)

malicious prosecution (Id. ¶J 64 — 67); (3) assault and battery (Id. ¶J 68 — 73);

and (4) intentional infliction of emotional distress (Id. ¶J 74 — 76). Hussein

requests compensatory damages, punitive damages, court costs, and other

equitable relief.

The history between the parties is long and contentious. In addition to

multiple state court proceedings, 2Hussein filed a civil case in this Court in

2009 before Judge Debevoise. Hussein v. State ofNew Jersey et al, No. 09-1291

(D.N.J. 2009) (the “Debevoise action”). The Amended Complaint in that case

named as defendants the State of New Jersey, Jon Corzine, Mayor J. Healy, the

Jersey City Police Department, the City of Jersey City, the Jersey City

Municipal Prosecutor, the Hudson County Prosecutor and Assistant

Prosecutor, Lolita Realty, and Anita and Robert Payne. Id. (Docket No. 8). That

Amended Complaint alleged seven counts: (1) against all Defendants for

excessive force under 42 U.S.C. § 1983; (2) and (3) against all Defendants for

violations of the Fifth, Seventh and Fourteenth Amendments under § 1983; (4)

against all Defendants for assault and battery; (5) against all Defendants for

negligence, gross negligence, and negligence per se; (6) against Lolita and the

1 The complaint also names as Defendants “John Doe 1-5.” However the

complaint fails to clarify who “John Doe 1-5” represent, and what, if any, claims

are made against the unnamed defendants.2 The litigation history between the parties includes: (1) June 2006 criminal

complaint by Hussein against Marrero for assault, (2) June 2006 complaint by Marrero against Hussein in Jersey City Municipal Court, (3) September 2006 criminal assault complaint by Marrero against Hussein, (4) July 2006 landlordtenant case by Lolita Realty against Hussein in Hudson County Superior Court, and (5) March 2007 landlord-tenant case by Lolita Realty against Hussein.

None of these matters are pending at this time.

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Jersey, (No. 09-1291) 2010 WL 891843 (D.N.J. 2010) (Docket No. 37).

Hussein then filed this case, which was assigned to District Judge Claire

C. Cecchi. On August 1, 2012 the case was reassigned from Judge Cecchi to

me. (Docket No. 24).

The plaintiff here, Mamdouh Hussein, was the tenant of apartment B5 at

111 Garrison Avenue, Jersey City, Hudson County, New Jersey. Hussein is of

Arabic national origin. During the relevant time period, Lolita Realty was the

owner of 111 Garrison Avenue. Robert and Anita Payne were the owners andofficers of Lolita. Joseph Marrero was the Superintendent of 111 Garrison

Avenue. Arthur Glatman, an attorney, represented Marrero, Lolita, and the

Paynes in various actions against Hussein from 2006 to 2008.

Hussein’s SAC is factually based on the same ongoing feud with his

landlord and superintendent that formed the basis of the 2009 action before

Judge Debevoise. The SAC alleges that, beginning in 2006, Jose Marrero

continually harassed Hussein—repeatedly cutting his electric and cable wires,

shutting off his electricity, failing to make repairs, and verbally and physically

assaulting him. SAC ¶{ 16 — 45. These allegations are interspersed with

descriptions of prior legal proceedings between the Plaintiff and Defendants. Id.

¶11 34 — 56. The core allegations of historical fact, however, are as follows:

1. On June 24, 2006, Marrero struck Hussein in the chest.with the handle

of a screw driver, requiring a two day hospitalization. Id. ¶ 20 — 21.

2. On July 2, 2006, Marrero approached Hussein in the basement of the

apartment building, spat on him, and punched him in the back. Marrero

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f[*]ing Arab. We are going to get all you f[*]jng Arabs out.” Id. ¶ 24.

4. Hussein’s electricity was turned off on July 27, 2006, August 15, 2006,

September 9, 2006, and September 12, 2006. Id. ¶J 28 — 29, 31, 36.

5. On September 10, 2006, Marrero threatened to cut off Hussein’s

electricity and to kill him. Id. ¶ 32.

6. On September 23, 2006, Marrero threatened and spat on Hussein, and

the electricity was disconnected. Id. ¶ 38.

7. On April 18, 2007, Marrero assaulted Hussein with a wrench, fracturing

his ribs. Id. ¶43.

8. On November 22, 2007, Marrero came to Plaintiff’s apartment under the

guise of looking for a leak and struck Plaintiff on the forehead with an

object. Id. ¶ 45.

9. During 2006 and 2008, attorney Arthur Glatman made false statements

to a court mediator and Jersey City Municipal Court, and prevented a

witness from testifying on Hussein’s behalf. Id. ¶f 34, 46, 48, 50.

10. In November, 2010, Defendants failed to repair a leak under Hussein’s

bathroom sink, which resulted in his slipping and falling on December

12, 2010. Id. ¶ 55.

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Debevoise action.

II. Discussion

Arthur Glatman was the only Defendant to respond to the SAC, moving

to dismiss the complaint on the grounds of statute of limitations, ripeness,

inadequate service, and failure to state a claim under Fed. R. Civ. Proc.

12(b)(6). (Docket No. 38). Glatman’s arguments may have merit. 3This Court,

however, finds that a separate issue, res judicata, provides the pertinent basisfor dismissing the complaint.

A. Standard of Review

The Court may dismiss, sua sponte, claims barred by res judicata. See

King v. East Lampeter Twp.., 69 F. App’x 94 (3d Cir. July 2, 2003) (not

precedential) (affirming district court’s sua sponte dismissal of complaint ongrounds of res judicata and collateral estoppel); see also Bieregu v. Ashcroft,

259 F. Supp. 2d 342, 352 (D.N.J. 2003) (“if a court is on notice that it has

previously decided the issue presented, the court may dismiss the action sua

sponte, even though the defense has not been raised”) (quoting United States v.

Sioux Nation, 448 U.S. 371, 432, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980)

(Rehnquist, J., dissenting) (quoted in Arizona v. Calfomia, 530 U.S. 392, 412,

120 S.Ct. 2304, 147 L.Ed.2d 374 (2000)).

3 Without making a formal finding, the Court notes that the statute of limitations most likely expired on these claims. It is also probable that Hussein’s complaint in its current form would not withstand a Fed. R. Civ.

Proc. 12(b)(6) analysis. See e.g. Carter u. Hamilton Affordable Hous., LLC, No. 9- cv-2399 FLW, 2009 WL 3245483 (D.N.J. Oct. 6, 2009) (citing United States v. Branella, 972 F.Supp. 294, 299 (D.N.J. 1997)) (establishing elements of FHA claim).

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Apr. 4, 2013) (citing same).

B. The FHA Claim is Precluded by the Debevoise Action.

The FHA claim in this action meets the three Athione requirements and is

dismissed with prejudice against all Defendants.

1. The Dismissal of the Debevoise Action Was Valid, Final, and

on the Merits.

For res judicata to apply there must have been a final judgment on the

merits in the prior case. Athione Indus., 746 F.2d at 983. The Debevoise Action

was dismissed in 2010 for failure to state a claim pursuant to 42 U.S.C. §

19 15e(2), and for lack of jurisdiction. Hussein v. New Jersey et. al, No. 09-cv1291, 2010 WL 891843 (D.N.J. Mar. 10, 2010). At that time, the case was

terminated. Order, Hussein v. New Jersey et. al, No. 09-cv- 1291 (D.N.J. Mar.

10, 2010), Docket No. 37. Hussein appealed the dismissal (Docket No. 38), but

the United States court of Appeals for the Third circuit affirmed Judge

Debevoise’s dismissal of the action. See Judgment, Hussein v. New Jersey et.

al, No. 10-20 18 (3d Cir. Nov. 18, 2010) (docketed as mandate at D.N.J. No. 09-

cv-1291, Docket No. 50). Judge Debevoise’s dismissal was therefore valid, final,and on the merits.

2. The Debevoise Action Involved the Same Parties or Their

Privies.

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The Third Circuit has held that “res judicata may be invoked against a

plaintiff who has previously asserted essentially the same claim against

different defendants where there is a close or significant relationship between

successive defendants.” Lubrizol Corp. v. Exxon Corp., 929 F.2d 960, 966 (3d

Cir. 1991) (quoting Gambocz v. Yelencsics, 468 F.2d 837, 841 (3d Cir. 1972));

see also Salerno v. Corzine, 449 F. App’x 118, 122-23 (3d Cir. Oct. 26, 2011)

(not published) (affirming sua sponte dismissal on claim preclusion grounds

and finding “ample grounds to find the privity requirement satisfied” where

newly named defendants and defendants in first suit “advance common goals

as agents of a single employer.”)

Defendants Marrero and Glatman have a “close or significant

relationship” to the other named Defendants, satisfying the privityrequirement. Marrero was the employee and agent of Lolita Realty (which is

owned by the Paynes) during the period of the complaint. Marrero’s alleged

statement in July 2006 when refusing Hussein’s rent check is the only

potential basis for a claim that any of the Defendants in this action

discriminated against Hussein. Similarly, Glatman is closely related to the

Paynes and Lolita. The factual allegations against Glatman arise exclusively

from his legal representation of Lolita and the Paynes against Hussein.

More generally, Hussein’s claims are brought against all Defendants, who

together allegedly waged a “campaign of harassment and intimidation.” SAC ¶

57. Thus the complaint on its face alleges that the Defendants are advancing

common goals. Corzine, 449 F. App’x at 122-23; see also Kappel v. Housing

Authority, No. 11-7323, 2011 WL 5374105, at *4 (N.D. Ill. Nov. 7, 2011)

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e was an

associate or agent of the other defendants, seeking a common goal.

There is thus a sufficiently close and significant relationship between

Defendants Marrero, Glatman and Arthur Payne, and Lolita Realty or the

Paynes to meet the “same parties or their privies” prong of the Athione analysis.

3. This Suit is Based on the Same Cause of Action.

The third prong of Athione requires that the second suit be based on the

same cause of action as the first. 746 F.2d at 983. The claims raised by

Hussein in this case, including the claim under the FHA, are based on the

same factual allegations and causes of action asserted in the Debevoise action.

Under the doctrine of res judicata, a valid judgment is preclusive of matters

that were raised or should have been raised in the earlier suit.

“Cause of action,” for these purposes, signifies something much broader

than the legal label attached to a claim. In Athione, the Third Circuit noted that

“cause of action’ cannot be precisely defined, nor can a simple test be cited for

use in determining what constitutes a cause of action for res judicata

purposes.” 746 F.2d at 983 (quoting Donegal Steel Foundry Co. v. Accurate

Prods. Co., 516 F.2d 583, 588 n. 10 (3d Cir.1975)). Rather, courts look to the

“essential similarity of the underlying events giving rise to the various legal

claims.” Davis v. United States Steel Supply, 688 F.2d 166, 171 (3d Cir. 1982).

Res judicata gives a judgment preclusive effect to not only the matters

determined in the earlier action, but “to all relevant matters that could have

been so determined.” Urttracht v. West Jersey Health System, 803 F. Supp. 978,982 (D.N.J. 1992).

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and in the same timeframe as the other allegations. As Hussein’s SAC posits,

the alleged discriminatory statement is part of the same “campaign ofharassment and intimidation.” SAC ¶ 57. It is subsumed by the claims in the

Debevoise action; a fortiori it “could have been . . . determined” there. Utracht,

803 F. Supp. at 982.

The FHA claim in this action rests on the same events and pattern of

conduct alleged in the Debevoise action. It could and should have beenbrought, if at all, in the first action, and it is barred by res judicata here. The

FHA claim satisfies the third requirement under Athione.

The three requirements of Athione having been met, the FHA claim raised

in Count 1 of the SAC is barred by res judicata, and is hereby dismissed with

prejudice.

B. The State Law Claims are Dismissed for Lack ofJurisdiction.

The Plaintiff’s remaining state law claims for assault and battery,

intentional infliction of emotional distress, and malicious prosecution 4may be

precluded as well. I choose, however, to dismiss them for lack ofjurisdiction.

Hussein’s SAC does not specify whether his malicious prosecution claim was

brought under state law or as a violation of 42 U.S.C. § 1983. The Court

assumes the claim was brought under state law, but a § 1983 claim would also

be properly dismissed. Hussein’s § 1983 claims were dismissed in theDebevoise action and would be barred by resjudicata. Furthermore, none of the

defendants in this action are state officials and they are not alleged to have

acted under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988) (“To

state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that

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has dismissed all claims over which it had original jurisdiction, the

supplemental jurisdiction statute grants the discretion to dismiss the

remaining state-law claims. 28 U.S.C. § 1367(c)(3). Because no substantial

federal question is presented, and there has been no substantial investment of

federal-court resources in adjudicating the state claims, dismissal seems thebetter course.

The FHA claim having been dismissed, the Court will exercise its

discretion to decline supplemental jurisdiction over Hussein’s remaining state

law claims. Counts 2, 3, and 4 of the Second Amended Complaint will therefore

be dismissed.

III. Conclusion

For the foregoing reasons, the Second Amended Complaint is dismissed

in its entirety. An appropriate Order will be filed.

Kevin McNulty

United States District Judge

Dated: October 3, 2013

the alleged deprivation was committed by a person acting under color of state

law.”); City of Greenwood v. Peacock, 384 U.s. 808, 829 (1966).

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