SWIATKOWSKI v. CITIBANK AS CITIGROUP

ds of res judicata); Day v. Moscow, 955 F.2d 807, 811 (2d Cir. 1992); see also Wilson v. Ltd. Brands, No. 08 CV 3431 (LAP), 2009 WL 1069165, at *4 (S.D.N.Y. Apr. 17, 2009) (granting judgment on the pleadings based on collateral estoppel); Jacobs v. Law Offices of Leonard N. Flamm, No. 04 Civ. 7607 (DC), 2005 WL 1844642, at *3 (S.D.N.Y. July 29, 2005) ("In cases where some of those factual allegations have been decided otherwise in previous litigation, however, a court may take judicial notice of those proceedings and find that plaintiffs are estopped from re-alleging those facts."); Waldman v. Vill. of Kiryas Joel, 39 F. Supp. 2d 370, 372-73 (S.D.N.Y. 1999) ("A defense of res judicata may be tested by a motion pursuant to Rule 12(c)."); Sassower v. Abrams, 833 F. Supp. 253, 264 n. 18 (S.D.N.Y. 1993) ("[T]he defense of res judicata or collateral estoppel may be brought, under appropriate circumstances, either via a motion to dismiss or a motion for summary judgment").

a. Collateral Estoppel

"[C]ollateral estoppel . . . means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Leather v. Eyck, 180 F.3d 420, 424 (2d Cir. 1999) (quoting Schiro v. Farley, 510 U.S. 222, 232 (1994)). "Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979). "Under New York law, collateral estoppel bars relitigation of an issue when (1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior action." In re Hyman, 502 F.3d 61, 65 (2d Cir. 2007) (citations omitted); accord Hoblock, 422 F.3d at 94. "The party seeking the benefit of collateral estoppel bears the burden of proving the identity of the issues, while the party challenging its application bears the burden of showing that he or she did not have a full and fair opportunity to adjudicate the claims involving those issues." Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991) (citing Kaufman v. Eli Lilly Co., 482 N.E.2d 63, 67 (N.Y. 1985)). Collateral estoppel generally does not include a requirement that the parties against whom plaintiffs litigated in the prior proceeding be the same parties they litigate against in the current proceeding. See United States v. Mendoza, 464 U.S. 154, 158 (1984); see also Amadsau v. Bronx Lebanon Hosp. Ctr., No. 03 Civ. 6450 (LAK) (AJP), 2005 WL 121746, at *8 (S.D.N.Y. 2005) ("[T]he doctrine of collateral estoppel does not require that the same parties are named in the earlier action in order to apply to the instant action."). Additionally, a district court may raise the issue of collateral estoppel sua sponte. Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir. 1998).

The Court first notes that, as discussed above, plaintiff's complaint — and her opposition to defendants' motion — may be fairly read to challenge the results of the state court foreclosure proceedings. The merits of defendants' foreclosure action were decided in state court. On October 13, 2005, the Supreme Court, Nassau County, issued a Judgment of Foreclosure and Sale that ordered that Citibank was entitled to judgment establishing the validity of the mortgage on 7 Park Lane Place and was entitled to recover, inter alia, upon that mortgage $309,745.47, with interest thereon from May 31, 2004 to the date of the closing of title of the referee's sale of the mortgaged premises. (Compl. Ex. D.)

Plaintiff had a full and fair opportunity to litigate the foreclosure on the property. The Judgment of Foreclosure and Sale specifically found that the Swiatkowskis and Koloch had been duly served with the summons and complaint in the present action. ( Id.) On January 29, 2004, Citibank's motion for summary judgment was granted, and the affirmative defenses raised by the Swiatkowskis in their answer were dismissed. The Swiatkowskis then filed a motion to reargue the Court's January 29, 2004 order. This motion was denied by the Supreme Court, Nassau County on April 26, 2004. By motion dated August 5, 2004, the Swiatkowskis next moved for an order vacating the judgment of foreclosure and dismissing the foreclosure action with prejudice. On November 10, 2004, the state court denied the Swiatkowskis their requested relief, noting that their argument had been previously determined in a prior foreclosure action and was thus barred by res judicata and collateral estoppel.

Moreover, as noted earlier, plaintiff has already attempted to raise these same claims in this federal court on prior occasions. On November 24, 2004, after the state court had granted summary judgment to Citibank in the state-court foreclosure action, Swiatkowski filed a petition to remove the Foreclosure Action to federal court. Swiatkowski also filed a separate civil rigths lawsuit in federal court relating to the foreclosure and defendants' actions in connection therewith. On March 18, 2005, Judge Spatt remanded the action to Supreme Court, Nassau County, and dismissed the federal lawsuit, for lack of subject matter jurisdiction based on application of the Rooker-Feldman doctrine. See Order, Swiatkowski v. New York, No. 04-cv-5122 and 05-cv-178 (E.D.N.Y. Mar. 18, 2005). Plaintiff appealed that decision to the Second Circuit, which affirmed based upon Rooker-Feldman. See Swiatkowski v. New York, 160 F. App'x 30, 31-32 (2d Cir. 2005). Thereafter, plaintiff again filed a notice of removal and attempted to remove the state case to this federal court on October 1, 2005. Judge Spatt once again dismissed plaintiff's claims as barred by Rooker-Feldman. See Citibank, N.A. v. Swiatko[w]ski, 395 F. Supp. 2d 5, 7 (E.D.N.Y. 2005).

In this case, collateral estoppel also bars plaintiff's claims regarding fraudulent documentation submitted to the Bankruptcy Court. Plaintiff had a full and fair opportunity to litigate the specific issues raised in the complaint in Bankruptcy Court. Plaintiff filed an objection to the Bankruptcy Court Order Dismissing the Case on October 27, 2009. In an objection to the Bankruptcy Court's order denying the Chapter 13 plan confirmation and dismissing the case, plaintiff made the same claims that she raises in the instant complaint. By Order dated March 31, 2010, the Bankruptcy Court overruled plaintiff's objection and noted that plaintiff's motion, in essence, sought the Bankruptcy Court's reconsideration of the same matters that had previously been before the Court. The Bankruptcy Court further noted that it had "painstakingly reviewed and analyzed the

claims of the debtors in the seven cases" that were brought by plaintiff, her husband, and Koloch, and determined that there was no reason or cause to reopen the case; accordingly, the Bankruptcy Court dismissed plaintiff's objections. See Decision and Order on Objection, at 7, In re Koloch, No. 8-07-73919-dem (Bankr. E.D.N.Y. Mar. 31, 2010). No appeal was filed from the Order and the case is now closed.

Thus, in addition to the Rooker-Feldman doctrine, the Court concludes that plaintiff's federal claims are barred by collateral estoppel: to the extent that the instant complaint alleges that defendants submitted fraudulent documents to the state court that resulted in the October 2005 Judgment of Foreclosure and Sale, plaintiff had a full and fair opportunity to litigate those claims in state court — both before the Supreme Court, Nassau County, and by filing a direct appeal to the Appellate Division. To the extent that plaintiff's complaint alleges federal violations by defendants associated with the alleged submission of fraudulent documents in the Bankruptcy Court proceedings, plaintiff also had a full and fair opportunity to litigate those claims. Specifically, plaintiff filed an objection to the Bankruptcy Court's dismissal of Koloch's Chapter 13 proceeding. The Bankruptcy Court concluded that plaintiff, her husband, and Koloch had brought seven bankruptcy petitions in total. In adjudicating the resolution of each of those petitions, the Bankruptcy Court had found "no reason or cause to reopen the case." Decision and Order on Objection, at 7, In re Koloch, No. 8-07-73919-dem (Bankr. E.D.N.Y. Mar. 31, 2010). The Court further notes that the proper venue to challenge the Bankruptcy Court's dismissal of plaintiff's rejection was to file an appeal. Accordingly, the Court concludes that plaintiff's current federal claims are identical to the issues decided in plaintiff's prior actions and are decisive of the present action, and plaintiff had a full and fair opportunity to litigate the federal claims that she raises in the instant complaint; thus, these claims are barred by collateral estoppel.

It also appears that the time for plaintiff to appeal from the Bankruptcy Court's Order has expired: under Bankruptcy Rule 8002, "[t]he notice of appeal shall be filed with the clerk within 14 days of the date of the entry of the judgment, order, or decree appealed from." Bankr. R. 8002. The Bankruptcy Court's Order was entered on March 31, 2010; therefore, plaintiff's time to appeal expired on April 14, 2010. In any event, even if the Court were to review the Bankruptcy Court's rulings under a de novo standard of review, the Court would reach the same conclusion.

b. Res Judicata

The state court and Bankruptcy Court proceedings also have res judicata effect and preclude plaintiff's claims in this case. The preclusive effect of res judicata is broader than that of collateral estoppel. Under the doctrine of res judicata, otherwise known as claim preclusion, "`a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action,'" not just those that were actually litigated. Flaherty v. Lang, 199 F.3d 607, 612 (2d Cir. 1999) (internal quotation marks and emphasis omitted) (quoting Rivet v. Regions Bank of La., 522 U.S. 470, 476 (1998)); accord Allen v. McCurry, 449 U.S. 90, 94 (1980). "In applying the doctrine of res judicata, [a court] must keep in mind that a state court judgment has the same preclusive effect in federal court as the judgement would have had in state

court." Burka v. N.Y. City Transit Auth., 32 F.3d 654, 657 (2d Cir. 1994). New York courts apply a transactional analysis of res judicata, "`barring a later claim arising out of the same factual grouping as an earlier litigated claim even if the later claim is based on different legal theories or seeks dissimilar or additional relief.'" Id. (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). The doctrine applies only if "(1) there is a previous adjudication on the merits; (2) the previous action involved [the party against whom res judicata is invoked] or its privy; and (3) the claims involved were or could have been raised in the previous action." Whelton v. Educ. Credit Mgmt. Corp., 432 F.3d 150, 155 (2d Cir. 2005) (citing Monahan v. N.Y. City Dep't of Corr., 214 F.3d 275, 284-85 (2d Cir. 2000)); see also People ex. rel. Spitzer v. Applied Card Sys., 894 N.E.2d 1, 12 (N.Y. 2008). Res judicata applies to defenses that could have been raised in the prior action as well. Waldman v. Vill. of Kiryas Joel, 39 F. Supp. 2d 370, 377 (S.D.N.Y. 1999) ("`Thus, res judicata prevents a party from litigating any issue or defense that could have been raised or decided in a previous suit, even if the issue or defense was not actually raised or decided.'" (quoting Woods v. Dunlop Tire Corp., 972 F.2d 36, 38 (2d Cir. 1992))); Newton Garment Carriers, Inc. v. Consol. Carriers Corp., 673 N.Y.S.2d 631, 632 (App. Div. 1998) ("[T]he doctrine of res judicata, or claim preclusion, forecloses a party from relitigating a cause of action that was the subject matter of a former lawsuit, or from raising issues or defenses that might have been litigated in the first suit."); Robbins v. Growney, 645 N.Y.S.2d 791, 792 (App. Div. 1996) ("`The doctrine of res judicata is applicable . . . to defenses raised in the prior action or which, though not raised, could have been.'" (quoting 119 Rosset Corp. v. Blimpy of N.Y. Corp., 409 N.Y.S.2d 735, 736 (App. Div. 1978))) (internal citations omitted).

In the instant action, the requirements for res judicata are met. First, the earlier state court action, which included a Final Judgment of Foreclosure and Sale, was a "previous adjudication on the merits." Cf. Alaimo v. Gen. Motors Corp., No. 07-CV-7624 (KMK) (MDF), 2008 WL 4695026, at *5 (S.D.N.Y. Oct. 20, 2008) ("Here, there is no doubt that the state court trial and subsequent denial of Plaintiffs' appeal was an adjudication on the merits."). Second, the requirement that the "the previous action involved [the party against whom res judicata is invoked] or its privy" is also met. Lidia Swiatkowski was a defendant in the prior action and is plaintiff in the present action. Finally, the claims involved were or could have been raised as claims or defenses in the previous action. As discussed above, central to the plaintiff's constitutional claims is the allegation that defendants improperly obtained a Judgment of Foreclosure and Sale against Swiatkowski. Many of the factual allegations plaintiff raises in opposition to the instant motion to dismiss involve issues that could have been raised as claims or defenses in the state court proceedings. In particular, any claims that plaintiff brings relating to whether defendants issued a declaration of default or order of foreclosure against plaintiff, her husband, and Koloch erroneously could have been raised by plaintiff in the state court action. Plaintiff alleges that CitiMortgage's records indicated that plaintiff was not in default under the mortgage in May 2002, but nonetheless, at that time, "CitiMortgage referred the file to its attorneys for foreclosure." ( Id. ¶ 21.) Any claims that plaintiff's payments were current should have been raised in the Supreme Court, Nassau County foreclosure proceeding. Therefore, res judicata bars plaintiff's claims to the extent those claims relate to the civil court proceedings.

( See Compl. Ex. D.)

Some decisions formulate this element as requiring that the current action be "between the same parties" as the prior action. See, e.g., Josey v. Goord, 880 N.E.2d 18, 20 (N.Y. 2007). That standard is met here as well. Citibank, N.A. was the plaintiff in the prior action and is one of the defendants here. Additionally, given that the complaint can be construed to allege that CitiGroup and CitiMortgage acted together with Citibank in bringing the prior actions against plaintiff and her family members, the Court will deem these parties to have been in privity with Citibank. See Akhenaten v. Najee, LLC, 544 F. Supp. 2d 320, 328 (S.D.N.Y. 2008) ("`The doctrine of privity . . . is to be applied with flexibility. . . . [T]here is no bright line rule' as to whether privity exists for res judicata purposes. `Rather, a finding of privity . . . depends on whether, under the circumstances, the interests of the [defendant] were adequately represented [in the earlier action].'" (quoting Amalgamated Sugar Co. v. NL Indus., Inc., 825 F.2d 634, 640 (2d Cir. 1987) (internal citations omitted) (alteration in original))); see also Watts v. Swiss Bank Corp., 265 N.E.2d 739, 743 (N.Y. 1970) (stating that privity includes, inter alia, "those who control an action although not formal parties to it [and] those whose interests are represented by a party to the action").

On November 24, 2004, after the state court had granted summary judgment to Citibank in the state-court foreclosure action, Swiatkowski filed a petition to remove the Foreclosure Action to federal court. On March 18, 2005, Judge Spatt remanded the action to Supreme Court, Nassau County, for lack of subject matter jurisdiction based on application of the Rooker-Feldman doctrine. See Order, Swiatkowski v. New York, No 05-cv-178 (E.D.N.Y. Mar. 18, 2005). Plaintiff appealed that decision to the Second Circuit, which dismissed the appeal of that decision pursuant to 28 U.S.C. § 1447(d) on July 1, 2005. See Swiatkowski v. New York, 160 F. App'x 30, 31-32 (2d Cir. 2005). Thereafter, plaintiff again filed a notice of removal and attempted to remove the state case to this federal court on October 1, 2005. Judge Spatt once again dismissed plaintiff's claims as barred by Rooker-Feldman. See Citibank, N.A. v. Swiatko[w]ski, 395 F. Supp. 2d 5, 7 (E.D.N.Y. 2005).

Res judicata also bars plaintiff's forgery and fraudulent document claims to the extent that they were raised in the Bankruptcy Court. As discussed supra, plaintiff had a full and fair opportunity to litigate the specific issues raised in the complaint in Bankruptcy Court. Plaintiff specifically raised the same claims regarding the alleged alteration of the date on the Notice of Entry and Judgment of

The Court additionally notes that plaintiff's allegation that Citibank did not serve the Judgment of Foreclosure and Notice of Entry, which was issued on October 13, 2005, until one year and two months after its entry is without merit. It is clear from the record that shortly after the judgment from the foreclosure action was entered, Michael Swiatkowski filed a voluntary petition for relief under Chapter 13. At that time, the property became subject to the stay on all debtor's property that is automatic in bankruptcy proceedings under 11 U.S.C. § 362. On January 3, 2006, CitiMortgage filed a motion for relief from the stay. The Bankruptcy Court eventually dismissed the case on November 22, 2006. Accordingly, shortly thereafter, on December 22, 2006, defendants served the Notice of Entry and Final Judgment of Foreclosure and Sale on plaintiff. Moreover, defendants submitted with their moving papers a certified copy of the Notice of Entry filed with the Court Clerk of Supreme Court, Nassau County, demonstrating that defendants did not tamper with the Court's "filed Dec. 26, 2006" seal.

Foreclosure and Sale. Plaintiff's objection in Bankruptcy Court also alleged that the foreclosure sale of her property was listed in local newspapers on November 9, 2005, but that the plaintiff and all parties involved were not notified about the sale. Plaintiff also alleged in her objection that the Affidavit of Service stated that the notice was mailed more than a year after the sale was listed in the paper. Plaintiff further alleged that the Sworn Notary for Affidavit of Service in the order is signed by the same attorney who signed off on the notice of service on the same order, Tedd Powel, Esquire. Plaintiff also alleged that the Nassau County Clerks' Office Seal of receipt on the order had been tampered with and the date was altered from 2005 to 2006. See Objection to Order Denying Confirmation of Chapter 13 and Dismissing the Case Without Prejudice, at 1-3, In re Koloch, No. 07-73919 (Bankr. E.D.N.Y. Oct. 27, 2009). Plaintiff further alleged, in her objection, that CitiMortgage incorrectly referred her mortgage file to its attorneys for foreclosure even though her payments were current in May 2002. See id.

The Koloch bankruptcy action involved plaintiff — she was a co-mortgagor on the property at 7 Park Lane Place with Betina Koloch. Plaintiff also filed several objections throughout the Koloch bankruptcy proceeding. Most notably, plaintiff filed an objection to the Bankruptcy Court order that denied Koloch Chapter 13 plan confirmation and dismissed the case. In that objection, as indicated above, plaintiff made the same claims regarding fraud and falsified documents that she raises in the instant complaint. By Order dated March 31, 2010, the Bankruptcy Court overruled plaintiff's objection and noted that plaintiff's motion, in essence, sought the Bankruptcy Court's reconsideration of the same matters that had previously been before the court. The Bankruptcy Court further noted that it had "painstakingly reviewed and analyzed the claims of the debtors in the seven cases" that were brought by plaintiff, her husband, and Koloch, and therefore dismissed plaintiff's objections. See Decision and Order on Objection, In re Koloch, No. 8-07-73919-dem (Bankr. E.D.N.Y. Mar. 31, 2010).

In sum, because plaintiff raised or could have raised her present claims in prior court actions, which were previously adjudicated on the merits — in both state court and before the Bankruptcy Court — and because plaintiff was involved in those prior actions, res judicata bars plaintiff's current federal claims based upon allegedly fraudulent submissions made by defendants in state court and Bankruptcy Court, and based on any alleged error in the state court's Judgment of Foreclosure and Sale.

Finally, even assuming arguendo that plaintiff was attempting to allege some new state court claim in this lawsuit, having determined that plaintiff's federal claims do not survive defendants' motion to dismiss, the Court concludes that retaining jurisdiction over any state law claims that plaintiff's complaint attempts to assert is unwarranted. 28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). "In the interest of comity, the Second Circuit instructs that `absent exceptional circumstances,' where federal claims can be disposed of pursuant to Rule 12(b)(6) or summary judgment grounds, courts should `abstain from exercising pendent jurisdiction.'" Birch v. Pioneer Credit Recovery, Inc., No. 06-CV-6497T, 2007 WL 1703914, at *5 (W.D.N.Y. June 8, 2007) (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir. 1986)). Therefore, in the instant case, the Court, in its discretion, "`decline[s] to exercise supplemental jurisdiction'" over plaintiff's state law claims because "it `has dismissed all claims over which it has original jurisdiction.'" Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting 28 U.S.C. § 1367(c)(3)); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) ("We have already found that the district court lacks subject matter jurisdiction over appellants' federal claims. It would thus be clearly inappropriate for the district court to retain jurisdiction over the state law claims when there is no basis for supplemental jurisdiction."); Karmel v. Claiborne, Inc., No. 99 Civ. 3608 (WK), 2002 WL 1561126, at *4 (S.D.N.Y. July 15, 2002) ("Where a court is reluctant to exercise supplemental jurisdiction because of one of the reasons put forth by § 1367(c), or when the interests of judicial economy, convenience, comity and fairness to litigants are not violated by refusing to entertain matters of state law, it should decline supplemental jurisdiction and allow the plaintiff to decide whether or not to pursue the matter in state court."). Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to retain jurisdiction over any remaining state law claims plaintiff is attempting to assert given the absence of any federal claims that survive.

D. Sanctions

Defendants seek to impose sanctions on plaintiff in the form of costs and an order banning plaintiff from future filings without Court approval. For the reasons discussed below, defendants' motion is denied.

1. Costs

"[T]he decision of whether to award costs . . . `is committed to the sound discretion of the district court.'" Cosgrove v. Sears, Roebuck, Co., 191 F.3d 98, 102 (2d Cir. 1999) (quoting ARP Films, Inc. v. Marvel Entm't Group, Inc., 952 F.2d 643, 651 (2d Cir. 1991)); see also Ne. Holdings, L.L.C. v. Town of Riverhead, 244 F.R.D. 166, 167 (E.D.N.Y. 2007) ("Taxation of costs if [sic] left to the discretion of the Court, and may be overturned on appeal `only in the event of an abuse of discretion.'" (quoting In re Air Crash Disaster at John F. Kennedy Int'l Airport, 687 F.2d 626, 629 (2d Cir. 1982))).

Rule 54 of the Federal Rules of Civil Procedure states that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed.R.Civ.P. 54(d)(1). Given the language of Rule 54(d), "an award against the losing party is the normal rule obtaining in civil litigation, not an exception. . . . For this reason, the losing party has the burden to show that costs should not be imposed. . . ." Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir. 2001) (citation omitted); see also Cosgrove, 191 F.3d at 101 ("Fed.R.Civ.P. 54(d) grants costs to a prevailing party as a matter of course in the absence of a countervailing statute or rule, unless the trial judge directs otherwise."); Zacharowicz v. Nassau Health Care Corp., No. 02-CV-4510, 2007 U.S. Dist. LEXIS 20946, at *4-5 (E.D.N.Y. Mar. 22, 2007) ("After the prevailing party demonstrates the amount of its costs and that they fall within an allowable category of taxable costs, that party enjoys a presumption that its costs will be awarded.").

However, although the award of costs to the prevailing party is the norm under Rule 54 rather the exception, it is well settled that the district court has the discretion to deny costs that are otherwise properly taxable if equitable considerations warrant such a result. "[F]or example, costs may be denied because of misconduct by the prevailing party, the public importance of the case, the difficulty of the issues, or the losing party's limited financial resources." Whitfield, 241 F.3d at 270. These examples do not constitute an exhaustive list

and the court may consider other equitable considerations that are applicable in a particular case. See, e.g., Moore v. Cnty. of Del., 586 F.3d 219 (2d Cir. 2009) (discussing the equitable considerations under Rule 54 in the context of a motion for costs under Fed.R.App.P. 39).

Here, the Court, in its discretion, determines that costs are not warranted. As discussed infra, although plaintiff's claims are barred by the doctrines of Rooker-Feldman, collateral estoppel, and res judicata, these are difficult concepts that a pro se party may not readily understand. See Maduakolam v. Columbia Univ., 866 F.2d 53, 56 (2d Cir. 1989) (noting, in the context of a motion for Rule 11 sanctions, that "the court may consider the special circumstances of litigants who are untutored in the law."). Moreover, although the Court acknowledges that "indigency per se does not automatically preclude an award of costs," Whitfield, 241 F.3d at 270, but plaintiff's pro se status and limited financial resources warrant the denial of costs here. Accordingly, defendants' motion for costs is denied.

2. Filing Injunction

The issuance of a filing injunction is appropriate when a plaintiff abuses court process to harass and annoy others with "`meritless, frivolous, vexatious or repetitive . . . proceedings.'" Davey v. Dolan, 453 F. Supp. 2d 749, 755 (S.D.N.Y. 2006) (quoting In re Hartford Textile Corp., 659 F.2d 299, 305 (2d Cir. 1991)). To determine whether a filing injunction is warranted, a district court should consider:

(1) the litigant's history of litigation and in particular whether it entailed vexations, harassing or duplicative lawsuits; (2) the litigant's motive in pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether other sanctions would be adequate to protect the courts and other parties.

Id. at 756. Here, Swiatkowski has a history of litigation involving duplicative lawsuits. This is her third attempt to raise claims in federal court relating to the state foreclosure judgment. The Court also notes that the Swiatkowskis have recently filed their eighth bankruptcy petition. Furthermore, a recitation of the procedural history of plaintiff's court filings makes evident that her motivation in pursuing the litigation is in part to delay the foreclosure proceeding on her home at 7 Park Lane Place in Massapequa, NY. Although plaintiff is pro se, which weighs against imposition of a filing injunction, the Court notes that Judge Spatt previously warned plaintiff that Court was contemplating the issuance of an order both prohibiting the Swiatkowskis from filing any future lawsuits in the Eastern District of New York without prior permission of the Court and prohibiting the Swiatkowskis from filing any papers in connection with this case, unless such papers are in response to those submitted by their adversary. Swiatko[w]ski, 395 F. Supp. 2d at 10. Furthermore, plaintiff's duplicative filings — two before Judge Spatt and now one before this Court — have resulted in additional expense to defendants, who have had to defend themselves against Swiatkowski's allegations, as well as appear in federal bankruptcy court to file proofs of claim and a variety of motions regarding the property.

Although many of these factors favor the ban, including plaintiff's repeated use of the Court system to delay foreclosure, because plaintiff is pro se and because one aspect of plaintiff's complaint included allegations regarding more recent events — notably, Koloch's Chapter 13 bankruptcy filing — the Court will give the plaintiff the benefit of the doubt that she believed, albeit erroneously, that principles of Rooker-Feldman and res judicata did not apply to this action. The fact that plaintiff did not file this federal lawsuit until over five years after the Second Circuit's decision in 2005 affirming Judge Spatt's remand to state court, and only after Judge Milton had issued an order in September 2009 reducing CitiMortgage's proof of claim (from $475,473.99 to $444,590.14), provides further support for the Court's conclusion that the pro se plaintiff sincerely believed (albeit erroneously) that the events in Bankruptcy Court somehow gave her the new ability to challenge the state court's 2005 judgment in federal court. However, "[d]uplicative litigation is, to be sure, clearly impermissible, and plaintiff must understand that further filing of overlapping pleadings may require sanctions." Soling v. N.Y. State, 804 F. Supp. 532, 539 (S.D.N.Y. 1992). The Court thus, in its discretion, declines to impose a filing injunction on plaintiff at this time, but issues plaintiff one final warning that any future filings of this nature will result in such a ban.

IV. CONCLUSION

For the foregoing reasons, defendants' motions to dismiss is granted. Specifically, the Court grants defendants' motion to dismiss plaintiff's federal claims because they are barred by the Rooker-Feldman doctrine, collateral estoppel, and res judicata. To the extent that plaintiff is attempting to raise any new state law claims, the Court declines, in its discretion, to exercise supplemental jurisdiction over any such claims. Accordingly, defendants' motion to dismiss is granted, and plaintiff's complaint is dismissed in its entirety. However, defendants' request for sanctions — including costs and an order precluding plaintiff from bringing further lawsuits without leave of Court — is denied. The Clerk of the Court shall enter judgment accordingly and close the case.

SO ORDERED.

Dated: October 7, 2010

Central Islip, New York