Opinion
18-CV-01693 (ALC) (OTW)
08-29-2022
ANTHONY ZAPPIN, Plaintiff, v. CLAIRE COMFORT, ROBERT WALLACK, THE WALLACK FIRM, P.C., HARRIET NEWMAN COHEN, COHEN RABIN STINE SCHUMANN LLP, Defendants.
REPORT & RECOMMENDATION
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE
To the Honorable Andrew L. Carter, Jr., United States District Judge:
Plaintiff Anthony Zappin (“Plaintiff”), proceeding pro se, brings claims against Defendants Claire Comfort, Robert Wallack, The Wallack Firm, Harriet Newman Cohen, and Cohen Rabin Stine Schumann LLP (collectively, the “Defendants”) pursuant to 28 U.S.C. § 1332(a)(1) and 28 U.S.C. § 1391. (ECF 168). Plaintiff alleges a litany of unlawful acts by Defendants, including fraud, conspiracy to commit fraud, abuse of process, and conspiracy to commit abuse of process. Additionally, Plaintiff alleges that the Wallack and Cohen Defendants engaged in attorney misconduct under N.Y. Judiciary Law § 487.
Throughout this Report & Recommendation, the Court refers to Defendants Wallack and The Wallack Firm collectively as “Wallack,” and to Defendants Cohen and Cohen Rabin Stine Schumann LLP collectively as “Cohen.”
Before me for Report and Recommendation are Defendants' motions to dismiss Plaintiff's Third Amended Complaint based on a lack of subject matter jurisdiction and failure to 1 state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6) (ECF 174; 178; 181). The Cohen Defendants further request that the Court enter a pre-filing injunction preventing Plaintiff from filing further actions related to Plaintiff's and Defendant Comfort's contentious child custody litigation in New York State Supreme Court. For the reasons that follow, I recommend that Defendants' Motions to Dismiss and Cohen's request for a pre-filing injunction be GRANTED.
For the purposes of ruling on a motion to dismiss under Rule 12(b)(6), the Court accepts as true all the facts alleged in Plaintiff's TAC (ECF 168). Ortiz v. Cornetta, 867 F.2d 146, 149 (2d Cir.1989). However, the Court has supplanted Plaintiff's account with facts drawn from documents from which the Court may take judicial notice, including pleadings, opinions and other court filings within this lawsuit and other related procedures. See Rates Tech. Inc. v. Speakeasy, Inc., 685 F.3d 163, 167 n.3 (2d Cir. 2012). The court may “consider . . . the complaint and any documents attached thereto or incorporated by reference and ‘documents upon which the complaint relies heavily.'” Id. (quoting In re Citigroup ERISA Litig., 662 F.3d 128, 135 (2d Cir. 2011) (internal quotations omitted).
This action arose out of fractious divorce and custody proceedings (the “Custody Action”) between former spouses Anthony Zappin and Claire Comfort in New York County Supreme Court, and subsequent fee and sanctions proceedings. (ECF 168, Third Amended Complaint 1 ¶ 1) (hereinafter, “TAC”). The New York County Supreme Court in the Custody Action (“the State Trial Court”) found that Plaintiff committed domestic abuse against Comfort and granted her sole custody of their child, as well as child support and an order of protection. Plaintiff was granted supervised visitation. (ECF 174, Defendant Comfort's Notice of Motion to Dismiss, Ex. 1 at 100-101) (hereinafter, “Comfort Motion.”). Following this decision, Comfort moved for Plaintiff to pay $400,000 in attorney's fees and costs. (Comfort Motion, Ex. 3 at 116). 2 In its ruling on the motion, the State Trial Court noted that Plaintiff's “abusive litigation tactics” were designed to inflate Comfort's legal fees, and referred the matter to a special referee for a determination on how Comfort's legal fees should be allocated (the “Fee Proceeding”). (Id. at 116-117). After finding that Plaintiff's “egregious” conduct doubled the expense of the Custody Action, the special referee recommended that Plaintiff pay Comfort's legal fees. This decision was affirmed by the State Trial Court. (Id. at 122).
Plaintiffs TAC is frequently misnumbered. (See TAC 13) (jumping from ¶ 30 to ¶ 1); (TAC 22-24) (jumping from ¶ 50 to ¶ 1 on page 22, and then jumping back from ¶ 2 to ¶ 51). For clarity, citations to the TAC will identify the relevant PDF page number, followed by paragraph number as listed on the identified PDF page.
All page citations refer to the cited ECF's PDF page numbering.
During the course of the Custody Action, Plaintiff was sanctioned $10,000 by the State Trial Court for a “maelstrom of misconduct.” (ECF 183, Wallack Defendants Memo. of Law in Support of Motion to Dismiss at 11-12) (hereinafter, “Wallack Motion”). In its decision disposing of the Custody Action and awarding sole custody of the child to Comfort, the State Trial Court also found that Plaintiff's conduct was “out of line with what is considered acceptable behavior for both attorneys and non-attorneys alike.” (Comfort Motion, Ex. 1 at 5). As a result of these decisions, the New York Attorney Grievance Committee brought sanctions against Plaintiff, ultimately resulting in his disbarment by the Appellate Department, First Division (the “Disciplinary Proceedings”).
Plaintiff has brought numerous federal lawsuits in this district that stem from the above-mentioned adjudications, all of which have been dismissed by various judges. See Zappin v. Daily News, No. 16cv8762 (KPF), 2017 WL 3425765, at *1 (S.D.N.Y. Aug. 2017) (holding that Plaintiff's defamation claim against Daily News is barred by fair and true report privilege); Zappin v. NYP Holdings, No. 16cv8838 (KPF), 2018 WL 1474414, at *1 (S.D.N.Y. Feb. 2018) (holding that the defamation claim against NYP Holdings is barred by fair and true report privilege); Zappin v. Cooper, No. 16cv5985 (KPF), 2018 WL 708369, at *1 (S.D.N.Y. Feb. 2018) 3 (dismissing Plaintiff's complaint on grounds of judicial immunity, sovereign immunity, the Rooker Feldman doctrine, collateral estoppel and failure to state a claim); Zappin v. Cooper, No. 20cv2669 (ER), 2020 WL 4753036 (dismissing Plaintiff's abuse of process claims under claim preclusion and prosecutorial immunity); Zappin v. Collazo, No. 19cv3781 (LGS), 2020 WL 5646496, at*1 (S.D.N.Y. Sep. 2020) (dismissing Plaintiff's complaint on grounds of res judicata and failure to state a claim); Zappin v. Schorr et. al., No. 22cv2034 (ER), (S.D.N.Y. filed Mar. 11, 2022). The case before me is yet another iteration of Plaintiff's past grievances. As alleged in his prior litigations, Plaintiff claims that the findings in the Custody Action, the Fee Proceeding, and the Disciplinary Proceeding were fabricated and fraudulent, the result of a vast conspiracy between Defendants and multiple actors and institutions within the New York State Court system. He accuses Defendants of destroying his access to his child, abusing the state courts, and causing him personal, financial, and reputational ruin. (TAC 60 ¶¶ 116-117; 63 ¶ 126; 67 ¶¶ 149-150).
A. Custody proceedings in the District of Columbia
Plaintiff and Comfort were married in May 2013. Their child was born in October 2013. (TAC 4 ¶ 10). Weeks after the child was born, Comfort and her father brought the child to Tacoma, Washington, without Plaintiff's consent. (Id.). Plaintiff subsequently filed a petition for custody and a motion for the emergency return of the child in the Superior Court for the District of Columbia (“DC Superior Court”). (Id. 4 ¶ 12). Within this complaint, Plaintiff introduced allegations of domestic violence committed by Comfort against him. (Id.) After the hearing, the presiding judge issued an order directing Comfort to return with the child to Washington, D.C. (Id. 5 ¶ 13). In response, Comfort filed documents raising allegations of 4 domestic violence committed by Plaintiff against her during and after her pregnancy. (Id. 5 ¶ 14).
A custody and visitation hearing pending litigation initially scheduled for November 20, 2013, was adjourned to March 2014 after Comfort filed a second temporary order of protection and Plaintiff requested time to gather evidence to respond. (TAC 5 ¶ 15). On that same date, Plaintiff and Comfort entered into a “Consent Order,” in which Plaintiff agreed to have no contact with Comfort and to have supervised visitations with his child. Zappin v. Comfort, Index No. 301568-2014, 26 N.Y.S.3d 217, at *2 (N.Y. Sup. Ct. Sept. 18, 2015).
The Court notes that Plaintiff's history of improper behavior towards the courts and judges presiding over his cases began in these first proceedings in Washington, D.C. Judge Epstein of the DC Superior Court found Plaintiff's motions to be “replete with intemperate and uncivil language about which the Court previously cautioned him.” Id.
B. The Custody Action in New York State Supreme Court
a) The Custody Action proceedings before Justice Kaplan
In February 2014, Comfort relocated with the child to New York City and the Washington D.C. court relinquished its family jurisdiction to New York State. (TAC 6 ¶16). At the same time, Plaintiff filed for divorce before the State Trial Court, initiating the Custody Action. (Id. 7 ¶ 18). The suit was assigned to Justice Kaplan. (Id.). During these proceedings, Comfort was represented by Wallack and his firm. (Id.)
In April 2014, Plaintiff stipulated to continued supervised visitation. Zappin v. Comfort, 26 N.Y.S.3d at *2. In the TAC, however, Plaintiff asserts that between April and July 2014, he requested a pendente lite hearing on at least four occasions to review the custody arrangements and revoke supervised visitation, and that these requests were denied. 5 (TAC 7 ¶ 19). Plaintiff alleges that these decisions were made off the record, which precluded him from appealing. (Id.). Plaintiff alleges that he sought reconsideration of the supervised visitation arrangement because its monthly costs exceeded his salary. (Id.) Plaintiff further alleges that supervised visitation was part of a strategy by Defendants to cause him financial harm and rob him of the ability to visit his child. (Id.). The State Trial Court found, however, that despite Plaintiff's repeated charges that he was denied a prompt hearing to determine his visitation rights, “the record shows that he acted in a manner actually designed to prevent such a hearing from happening.” Zappin v. Comfort, 26 N.Y.S.3d at *2.
Plaintiff also alleges that due to the financial strain caused by the visitations, he could no longer afford legal representation, and accordingly proceeded pro se. (TAC 8 ¶ 20). The State Trial Court then appointed Harriet Cohen as Attorney for the Child. (Id. ¶ 21). Plaintiff alleges that Cohen was unqualified to be the Attorney for the Child, and that her appointment was a kickback for her firm's campaign donations to Justice Kaplan. (Id.).
Plaintiff has since sued his former lawyers for legal malpractice twice. Plaintiff did not pursue the state lawsuit Zappin v. Aronson Mayefsky & Sloan, LLP, Index No. 158501/2015 (Sup. Ct. NY Cnty. 2015) (dismissing summons for failure to timely serve a complaint). The federal lawsuit, Zappin v. Aronson Mayefsky & Sloan, LLP, No. 16cv7417 (LGS) (S.D.N.Y. dismissed Mar. 22, 2017), was dismissed with prejudice after the parties entered into a confidential settlement.
In October 2014, Plaintiff filed a motion to disqualify Cohen as Attorney for the Child, accusing her of harassing medical providers, failing to serve subpoenas on Comfort's medical providers, fabricating allegations and making misrepresentations, violating court orders, and other misconduct. (TAC 9 ¶ 23). Pending these allegations, Justice Kaplan “stayed” the case, an 6 action which Plaintiff alleges was an effort to frustrate his request for a pendente lite child custody hearing. (Id. 9-10 ¶¶ 23-24).
At this stage of the proceedings, Plaintiff began to express his frustration with the State Trial Court on the Internet. (Id. 10 ¶ 25). In the final months of 2014, Plaintiff sought the help of David Evan Schorr, an attorney he believed could help him in his quest to disqualify Justice Kaplan. With Mr. Schorr's help, Plaintiff distributed various allegations about Justice Kaplan's family, and circulated them throughout the courthouse and on the Internet. (Id. 11 ¶ 26; 45 ¶ 90).
Mr. Schorr was a party in a past custody case in front of Justice Kaplan, where he allegedly successfully sought Justice Kaplan's recusal. (TAC ¶¶ 88-89).
Later in the litigation, Plaintiff moved for an order sanctioning Comfort and Wallack for deliberately delaying resolution of the Custody Action and repeatedly violating court orders. (ECF 182, Def. Wallacks' Decl. in Support of Motion, Ex. E at 38-40) (hereinafter, “Wallack Decl.”). The State Trial Court denied this application, finding that it was Plaintiff who “engaged in a pattern of conduct which has undoubtedly delayed the resolution of this matter.” (Id. at 46).
In April 2015, Plaintiff hired new counsel, but ultimately discharged her and retained Mr. Schorr as “co-counsel.” (TAC 46 ¶¶ 93-94, 96-97). Specifically, Plaintiff alleges that Mr. Schorr insisted that Plaintiff fire his past retained counsel and hire him instead, and that Plaintiff pay him in cash so that he could be considered “pro bono counsel,” a label that would allegedly help Mr. Schorr in his own disciplinary proceedings. (Id. ¶ 94, ¶ 96-97). Plaintiff alleges 7 that he while he did not want Mr. Schorr to represent him, he agreed to his representation because he could no longer afford the services of prior counsel. (Id. ¶ 96).
Matter Not Available.
On April 24, 2015, while waiting for his counsel, Plaintiff alleges that the court officer on duty assaulted him and caused him injuries for which he was treated in a hospital. (TAC 11 ¶ 27). After this incident, Plaintiff filed an action before the New York Court of Claims on April 30, 2015. (Id. 12 ¶ 28). Two weeks later, Justice Kaplan was reassigned to an administrative position in the New York Office of Court Administration and the Custody Action was assigned to Justice Cooper. (Id. ¶¶ 28-29).
b) The Custody Action proceedings before Justice Cooper
On September 18, 2015, the State Trial Court, through Justice Cooper, imposed sanctions of $10,000 on Plaintiff for his history of abusive litigation tactics. Zappin v. Comfort, 26 N.Y.S.3d at *13. In doing so, the State Trial Court noted that Plaintiff “has used his pro se status to inflict harm on his wife, their child and the court,” and has gone to lengths to “use his law license as a tool to threaten, bully, and intimidate.” Id. at *2. The State Trial Court further concluded that Plaintiff's “ill-advised behavior seriously calls into question his fitness to practice law.” Id. The State Trial Court found that Plaintiff's most egregious misconduct was directed towards Cohen, simply because “[s]he is advocating a position he disagrees with.” Id. at *5. For example, when Cohen moved for an order directing Plaintiff to pay her legal fees, Plaintiff had Cohen served with a subpoena, which the State Trial Court described as yet “another tactic in what threatens to be an inexhaustible arsenal.” Id. at *7. 8
Plaintiff alleges that these monetary sanctions were imposed without notice or opportunity to be heard and in retaliation for the criticisms and legal actions he took against Justice Kaplan. (TAC 15 ¶ 34). Plaintiff alleges that Justice Cooper and Justice Kaplan were longtime friends, (id. 13 ¶ 30) and that with the aid of Cohen and Wallack, Justice Cooper intentionally sought to inflict harm on him by disseminating the monetary sanctions decision to the press. (Id. 15 ¶ 35). Plaintiff alleges that as a result of these allegedly improper actions, he lost his employment and his child was exposed to tabloid media coverage. (TAC 16 ¶ 37). Moreover, Plaintiff claims that Justice Cooper's actions as the State Trial Court were inconsistent with his responsibilities to act impartially between the parties and in the best interests of the child. (Id. 17 ¶ 39). As a result, Plaintiff filed a motion to disqualify Justice Cooper from the Custody Action, which was ultimately denied. (Id. 18 ¶ 40).
The remainder of the Custody Action was held between November 12 and December 21, 2015. (Id. 17 ¶ 39; 19 ¶ 42). Plaintiff stated that throughout the trial, his co-counsel Mr. Schorr advised, pressured, and directed him to take actions that prejudiced Plaintiff. (TAC 48 ¶ 101). According to Plaintiff, Mr. Schorr became involved in his case with the goal of sabotaging Plaintiff, allegedly seeking to “ingratiate himself” before Wallack and Cohen, incite Plaintiff to engage in egregious conduct, and present Mr. Schorr's work on Plaintiff's case as mitigating evidence for his own disciplinary proceedings. (Id. 47 ¶ 100). 9
Plaintiff did not name Mr. Schorr as a Defendant in this action.
Mr. Schorr was himself subject to disciplinary proceedings by the New York Attorney Grievance Committee for unauthorized recording of a court proceeding, in violation of the New York Rules of Professional Misconduct. Mr. Schorr consented to the imposition of discipline in the form of a public censure, and the Appellate Division, First Department publicly censured him on October 30, 2018. Matter of Schorr, No. M-3080, 86 N.Y.S.3d 75, 78, 2018 N.Y. Slip Op. 07278, 2018 WL 5512056 (N.Y.A.D. 1 Dept., Oct. 30, 2018).
The State Trial Court awarded sole custody of the child to Comfort and allowed Plaintiff supervised visitation while imposing child support obligations on him. (Id. 19-20 ¶¶ 42-44; Comfort Motion, Ex. 1 at 93, 101, 104). Plaintiff alleges that this decision, coupled with the State Trial Court's imposition of monetary sanctions on him, was fabricated and engineered to impose attorney discipline against him. (TAC 19 ¶ 43).
Plaintiff argues that his position in the Custody Action was constantly undermined by Mr. Schorr, who he alleges was the “mastermind” behind his many missteps in the litigation.(Id. 48 ¶ 101). Plaintiff alleges that Mr. Schorr's actions in this regard were for the purpose of ingratiating himself with Defendants for professional gain and for appearing to be a more levelheaded litigant than Plaintiff as mitigation in his own attorney disciplinary proceedings. (Id.). Plaintiff alleges that he “eventually” fired Mr. Schorr, after it “became apparent” that Mr. Schorr was working in concert with Cohen and Wallack. (Id. 52 ¶ 104).
The actions that Mr. Schorr is alleged to have “advised, pressured and directed Plaintiff to carry out” include: filing a medical misconduct claim with the New York Office of Professional Medical Conduct against Cohen's expert witness; exerting “immense pressure” on Plaintiff to engage in witness intimidation; directing Plaintiff's father to establish a website impugning Justice Kaplan's family; directing Plaintiff's father to establish a website impugning Cohen; directing Plaintiff to establish a website impugning Justice Cooper; asking Plaintiff's expert witnesses to lie under oath; preventing Plaintiff's father from testifying; directing Plaintiff to not produce his cell phones in contravention of court orders; encouraging Plaintiff to be hostile towards Justice Cooper; and refusing to raise or preserve objections on Plaintiff's behalf. (TAC 48-52 ¶¶ 102-103).
Finally, Plaintiff appealed the State Trial Court's decision to the Appellate Division, First Department. (TAC 168 ¶ 45; Comfort Motion, Ex. 2 at 107-113). The Appellate Division summarily affirmed the State Trial Court's determinations, including the imposition of sanctions. (Id.). 10
C. The Disciplinary Proceeding
a) The Sua Sponte Investigation
On October 13, 2015, Staff Attorney Kevin M. Doyle of the New York Attorney Grievance Committee notified Plaintiff that the Committee had initiated a sua sponte investigation in response to a disciplinary complaint against Plaintiff made by Cohen. (ECF 179, Decl. in Supp. of Def. Cohen's Motion to Dismiss, Ex. D at 2) (hereinafter “Cohen Decl.”). The Attorney Grievance Committee accused Plaintiff of multiple violations of the N.Y.Rules of Professional Conduct, including inappropriately communicating with the judges presiding over his matrimonial proceedings in New York and the District of Columbia; misbehavior against opposing counsel in said proceedings; fabricating allegations against Justice Kaplan; using the Internet to disparage counsel and the State Trial Court; disseminating federal lawsuits to “harass and injure”; and apparent misconduct involving physical violence. (See generally, id.). Mr. Doyle also investigated Wallack's and Comfort's complaint that Plaintiff had threatened criminal charges against Comfort and falsely indicated that the Manhattan District Attorney's Office was investigating them. (Id. at 3).
b) The Collateral Estoppel Petition
On April 22, 2016, the Attorney Grievance Committee filed a collateral estoppel petition with the Appellate Division, First Department, seeking to find Plaintiff guilty of misconduct based on the State Trial Court's findings in the Custody Action. (Cohen Decl., Ex. E at 2-3). The First Department granted the motion on October 17, 2016, “finding respondent guilty of professional misconduct and referring the matter to a referee solely to consider 11 evidence in mitigation or aggravation.” In re Zappin, 73 N.Y.S.3d 182, *183 (N.Y.App.Div. 2018).
Plaintiff then sought to vacate the First Department's order, arguing that it “was procured through fraud, misrepresentation and other misconduct by the Committee.” (Cohen Decl., Ex. F at 5). Specifically, Plaintiff claimed that the Committee filed the collateral estoppel petition knowing that findings in the Custody Action were either unsupported by the evidence or fabricated for the purpose of initiating a disciplinary proceeding against Plaintiff. (Id. at 8). In addition, Plaintiff alleged that Mr. Doyle unlawfully colluded with the Defendants in initiating the sua sponte investigation. (Id. at 43). Plaintiff further requested that Mr. Doyle be sanctioned for “engag[ing] in misconduct and frivolous behavior” in relation to the sua sponte investigation and claimed that the collateral estoppel petition was only filed to harass and injure him. (Id. at 69).
On December 19, 2016, the Disciplinary Proceeding was held before a Special Referee, who ultimately rejected Plaintiff's mitigation evidence and recommended that he be disbarred. In re Zappin, 73 N.Y.S.3d at *184. Subsequently, Plaintiff submitted an affidavit in opposition where he again alleged that he lacked notice and an opportunity to be heard. Id. at *185. On March 8, 2018, the First Department adopted the Referee's Report & Recommendation to disbar Plaintiff. Id. at *187-188. In doing so, the First Department dismissed Plaintiff's argument that he had not been provided a full and fair opportunity to be heard and found “no credible support” for Plaintiff's fraud and misconduct accusations against the Attorney Grievance Committee. Id. 12
D. The Fee Proceedings
Near the end of the Disciplinary Proceeding, on September 15, 2016, Comfort and Wallack filed a post-judgment motion for attorney's fees, arguing that Plaintiff should be directed to pay $400,000 of Comfort's outstanding counsel fees. (TAC 168 ¶ 46). The State Trial Court granted Defendants' motion, finding that “the record clearly establishes . . . that from the very inception of the case, plaintiff consistently employed abusive litigation tactics that were designed to inflict as much pain as possible on defendant, defendant's family and others, and that one of his primary goals was to make defendant and her family spend as much as possible on counsel fees.” (Comfort Motion, Ex. 3 at 116). Accordingly, the State Trial Court determined that Comfort was entitled to recover “sufficient counsel fees to compensate her for having to spend more than she should have had to spend but for plaintiff's misconduct.” (Id. at 117). The matter was then referred to Referee Marilyn T. Sugarman to provide a report and recommendation. (TAC 168 ¶ 47).
a) Proceedings before Referee Sugarman
The State Trial Court found that Wallack and Comfort were only entitled to fees incurred as a “result of plaintiff's obstructionist and dilatory tactics or other oppressive behavior.” (Id.) Plaintiff alleges that neither Defendant was able to identify one entry within Wallack's invoices that was the result of such behavior. (Id.) Plaintiff further places the onus of the substantial counsel fees Comfort amassed back onto her, arguing that they were a result of her “own doing” and Wallack's “fee padding.” (Id. ¶ 48).
Reviving arguments made in his initial opposition papers in the Fee Proceeding, Plaintiff alleges that he was repeatedly forced to bring motions as a result of Comfort's refusal to abide 13 by discovery directives, court orders, and refusal to compromise on visitation schedules. (Id.) Further, Plaintiff alleges that Wallack and Comfort brought multiple frivolous motions, such as Wallack's request for a protection order under the New York Domestic Relations Law that the State Trial Court ultimately denied. (Id.) Additionally, Plaintiff disputes Wallack's total bill of $857,881.19, arguing that this number is not credible because the majority of Plaintiff's motions were denied without opposition. (Id.)
Plaintiff further alleges that most of Wallack's bills consisted of “non-descript” entries so vague that it was impossible to determine who performed the work, whether the work was reasonable, or even whether the work was performed at all. (Id. 22 ¶ 51). Further, Plaintiff alleges that some invoices contained entries for work that was never presented before the court. (Id.) Specifically, Plaintiff alleges that certain invoices documented fees for communications between Cohen and Wallack “for work that was never performed.” Plaintiff points to several of these “conflicting entries” as evidence of fee padding. (Id. 26 ¶ 56; 37 ¶ 75).
During the Fee Proceeding, Plaintiff cross-examined Wallack, who testified that Comfort never disputed his invoices or entries. (TAC 26 ¶ 57). Comfort similarly testified that she never objected to these bills. (Id. 27 ¶ 58). Plaintiff alleges that this testimony is at odds with Comfort's testimony at a later child custody and support modification proceeding in the D.C. Superior Court, during which she allegedly disputed some of Wallack's entries, and claims that Comfort gave perjured testimony during the Fee Proceedings in furtherance of a scheme to financially injure him. (Id. 29 ¶¶ 62-63). 14
In her Report and Recommendation, Referee Sugarman found that Plaintiff's conduct in the Custody Action “was so egregious that it permeated the entire litigation” and that Plaintiff “essentially waged war on [Comfort] by a campaign of chronic abuse on her and everyone else involved in this matter,” inflating Comfort's legal fees in the process. (Comfort Motion, Ex. 4 at 146). Referee Sugarman estimated that “plaintiff probably made this litigation at least twice as difficult and twice as expensive as need be,” and recommended that Comfort's request for an award of $400,000 in counsel fees be granted. (Id. at 148, 157).
This decision was affirmed by Judge Michael L. Katz, writing for the New York Supreme Court. (Comfort Motion, Ex. 3 at 122-123).
E. Plaintiff's Claims and Defendants' Rule 12(b)(1) Motion
Counts I and II of Plaintiff's TAC allege abuse of process and conspiracy to commit abuse of process against all Defendants. (TAC 60 ¶¶ 116-117; 61-62 ¶¶ 119-122). Count III alleges fraud against Wallack and Cohen only. (TAC 63 ¶ 126). Count IV alleges conspiracy to commit fraud by all Defendants (TAC 64-65 ¶¶ 133-134), and Count VII alleges it specifically against Wallack and Cohen (TAC 67 ¶¶ 149-150). Lastly, Plaintiff brings claims for violations of N.Y. Judiciary Law § 487 in Counts V and VI against all Defendants. (TAC 66 ¶ 140, 144).
Defendants move to dismiss the TAC under Fed.R.Civ.P. 12(b) and raise two jurisdictional issues: (1) that the domestic relations exception to diversity jurisdiction precludes federal jurisdiction over this action, and (2) that the Rooker-Feldman doctrine bars reconsideration of issues that were already decided in state court proceedings. (ECF 175, Def. Comfort's Memo. of Law in Support at 4, 5); (Wallack Motion at 20-29); (ECF 180, Def. Cohen's 15 Memo. of Law in Support at 18-21 (hereinafter, “Cohen Motion”)). They also move to dismiss the TAC for failure to state a claim under Rule 12(b)(6). (Id.).
As a preliminary matter, I note that Plaintiff has amended his original complaint three times (see ECF Nos. 68, 131, and 168), and has filed no opposition to Defendants' Motions to Dismiss, despite being given more than two years to do so. Accordingly, the Court considers the motions unopposed, but adjudicates them on their merits. See Goldberg v. Danaher, 599 F.3d 181, 183 (2d Cir.2010) (explaining that district courts should consider the merits of a motion to dismiss rather than automatically grant the motion if a plaintiff fails to respond); Skrable v. Aetna Ins. Co., 2010 WL 4053981, at *1 (S.D.N.Y., 2010) (“A district court may not grant a Rule 12(b)(6) motion simply because it is unopposed, but must review the merits of the motion and decide if the movant has met its burden”).
For the reasons stated below, I recommend that the TAC be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) and, if the District Court disagrees as to my subject matter jurisdiction recommendation, for failure to state a claim under Rule 12(b)(6).
As explained supra, Section I.E., Plaintiff did not file any response or opposition to the Defendants' Motions to Dismiss the TAC. Thus, the analysis is based on the arguments set forth in Plaintiff's previous opposition papers to Defendants' motions to dismiss the Second Amended Complaint (ECF 149; 150).
A “pro se complaint . . . [is] interpret[ed] . . . to raise the ‘strongest [claims] that [it] suggest[s].'” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam)). “However, although pro se filings are read liberally and must be interpreted ‘to raise the strongest arguments that they suggest,' a 16 pro se complaint must still ‘plead sufficient facts to state a claim to relief that is plausible on its face.'” Wilder v. U.S. Dep't of Veterans Affairs, 175 F.Supp.3d 82, 87 (S.D.N.Y. 2016) (internal citations omitted). Moreover, “the court need not accept as true ‘conclusions of law or unwarranted deductions of fact,'” and “‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice,'” even for purposes of a pro se complaint. Whitfield v. O'Connell, 9cv1925 (WHP), 2010 WL 1010060, at *4 (S.D.N.Y. Mar. 18, 2010) (internal citations and quotation marks omitted); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal citations and quotation marks omitted). Accordingly, the Court may not “invent factual allegations that a plaintiff has not pled.” Daly v. Westchester Cty. Bd. of Legislators, No. 19cv4642 (PMH), 2021 WL 229672, at *4 (S.D.N.Y. Jan. 22, 2021) (internal citations and quotation marks omitted).
Additionally, where the pro se plaintiff is a lawyer, the “special solicitude” ordinarily provided to pro se litigants is inapplicable. Schorr v. Prudenti, No. 15cv4054, 2016 WL 1070850, at *3 (S.D.N.Y. Mar. 15, 2016); see also Tracy v. Freshwater, 636 F.3d 90, 102 (2d Cir. 2010) (“[T]he degree of solicitude may be lessened where the particular pro se litigant is experienced in litigation and familiar with the procedural setting presented. . . . The ultimate extension of this reasoning is that a lawyer representing himself ordinarily receives no such solicitude at all.”). At the time of the Custody Action, Plaintiff was a practicing lawyer who had had substantial experience with litigation and was familiar with its procedural settings, and accordingly cannot be entitled to the special consideration that courts generally provide pro se litigants. See Zappin v. Cooper, 2018 WL 708369, at *4; United States v. Pierce, 649 Fed.Appx. 117, 117 n.1 (2d Cir. 2016) 17 (summary order) (denying special solitude to pro se litigant who was a disbarred attorney)).
A. Subject Matter Jurisdiction
Subject matter jurisdiction “refers to a tribunal's power to hear a case,” Morrison v. Nat'l Austl. Bank Ltd., 561 U.S. 247, 254 (2010) (internal quotations and citations omitted), and “represents the extent to which a court can rule on the conduct of persons or the status of things.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009) (internal citations and quotation marks omitted). The requirement of subject matter jurisdiction “can never be forfeited or waived,” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (internal citations and quotation marks omitted), and may be raised “at any time.” Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) (citing Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976)); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). “A court properly dismisses an action under Rule 12(b)(1) if the court ‘lacks the statutory or constitutional power to adjudicate it.'” Scroggins v. Scroggins, 15cv9524, 2017 WL 1047356, at *3 (S.D.N.Y. Mar.16, 2017) (Engelmayer, J.) (quoting Cortlandt St. Recovery Corp. v. Hallas Telecomms. S.A.R.L.,790 F.3d 411, 416-17 (2d Cir. 2015)).
a) The Legal Standard
The standard used to decide a Rule 12(b)(1) motion depends upon the context in which it is made. If the motion is based upon the factual allegations contained in the complaint, the court must accept those allegations as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Rajamin v. Deutsche Bank Nat'l Tr. Co., 757 F.3d 79, 81 (2d Cir. 2014); 18 Liranzo v. United States, 690 F.3d 78, 84 (2d Cir. 2012); Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998); Chen-Oster v. Goldman, Sachs & Co., 251 F.Supp.3d 579, 585-86 (S.D.N.Y. Apr. 12, 2017). To survive such a motion, Plaintiff needs only to "allege facts that affirmatively and plausibly suggest" that the court has subject matter jurisdiction over the claims in question. Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir. 2011).
Nonetheless, "[w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." APWU v. Potter, 343 F.3d 619, 627 (2d Cir. 2003) (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir.1999)); Chen-Oster, 251 F.Supp.3d at 586. Where factual issues have been placed into contention by defendants' evidence, "[t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Liranzo, 690 F.3d at 84 (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005)); see also Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) ("A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists").
b) Plaintiff's Claims are Barred by the Domestic Relations Exception to Federal Jurisdiction
It is well-settled that “the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-94 (1890); Khalid v. Sessions, 904 F.3d 129, 133 (2d Cir. 2018) (“Family law . . . is an area of law that federal courts and Congress leave almost exclusively to state law and state courts.”). Accordingly, the Supreme Court has recognized a “domestic 19 relations exception” to subject matter jurisdiction that “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992).
The Second Circuit has repeatedly held that “subject matter jurisdiction may be lacking in actions directed at challenging the results of domestic relations proceedings,” Martinez v. Queens Cty. Dist. Att'y, 596 Fed.Appx. 10, 12 (2d Cir. 2015), and emphasized that a “federal court presented with matrimonial issues or issues ‘on the verge' of being matrimonial in nature should abstain from exercising jurisdiction so long as there is no obstacle to their full and fair determination in state courts.” Thomas v. Martin-Gibbons, No. 20cv3124, 2021 WL 2065892 at *39 (2d Cir. May 24, 2021); Deem v. DiMella-Deem, 941 F.3d 618, 623-25 (2d Cir. 2019); American Airlines, Inc. v. Block, 905 F.2d 12, 14 (2d Cir. 1990); see also, e.g., Sprole v. Underwood, No. 3:18cv1185 (LEK) (ML), 2019 WL 4736241, at *6 (N.D.N.Y. Sept. 27, 2019) (applying domestic relations exception where court would need to “re-examine and reinterpret” decisions and evidence presented in state action an “becom[e] embroiled in the factual disputes” in that action); Guichiardo v. Barrazza, No. 16cv1222, 2016 WL 3541547, at *3 (E.D.N.Y. Jun. 23, 2016) (applying the domestic relations exception where the plaintiff “style[d] some of her claims as raising constitutional issues, but the allegations stem from a state domestic relations matter . . .”). Further, “a plaintiff cannot obtain federal jurisdiction merely by rewriting a domestic dispute as a tort claim for monetary damages.” Schottel v. Kutyba, 2009 WL 230106, at *1 (2d Cir. Feb. 2, 2009) (affirming dismissal of fraud claim for monetary 20 damages where the “gravamen” of plaintiff's claims involved dissolution of a marriage and “beg[a]n and end[ed] in a domestic dispute”).
See, e.g., Deem v. DiMella-Deem, No. 18cv11889 (KMK), 2019 WL 1958107, at *12 (S.D.N.Y. May 2, 2019), aff'd, 800 Fed.Appx. 62 (2d Cir. 2020) (dismissing monetary claims against plaintiff's wife, wife's attorney, and family court judges overseeing divorce and child custody proceedings arising from defendants' alleged actions in those proceedings); Wexler v. YWCA, No. 17cv5016 (CM), 2018 WL 9539133, at *1 (S.D.N.Y. Mar. 22, 2018) (dismissing monetary claims for, inter alia, being “falsely accused” and “defamed in open Family Court”); Kneitel v. Palos, No. 15cv2577 (NGG) (VVP), 2015 WL 3607570, at *5 (E.D.N.Y. June 8, 2015) (dismissing monetary claims against family court judges for, inter alia, improperly calculating support obligations, engaging in ex parte communications, denying motions, awarding attorneys' fees, and threatening incarceration for failure to comply with court orders in custody proceedings); Keane v. Keane, No. 08cv10375 (GAY), 2012 WL 6582380, at *2 (S.D.N.Y. Dec. 17, 2012), aff'd, 549 Fed.Appx. 54 (2d Cir. 2014) (dismissing monetary claims alleging defendant-spouse fraudulently concealed satisfaction of a mortgage during divorce proceeding); Renner v. Stanton, No. 13cv01676 (DLI), 2013 WL 1898389, at *1 (E.D.N.Y. May 7, 2013) (dismissing monetary claims against judges and referee for, inter alia, being biased against plaintiff and refusing to arbitrate claims that plaintiff's attorneys had extorted legal fees).
The TAC should be dismissed pursuant to the domestic relations exception to federal jurisdiction. While Plaintiff is not demanding that the Court grant or modify a divorce, alimony, or child custody decree, the “gravamen” of the TAC plainly concerns the Custody Action and the Disciplinary and Fee Proceedings that arose from it. Plaintiff explicitly concedes that the Custody Action is “the matter from which the instant action stems,” and his allegations center on a theory that decisions within the Custody Action and the Disciplinary and Fee Proceedings were a result of a conspiracy between the participants in the Custody Action. Plaintiff's allegations against Wallack and Cohen directly concern their respective representations of Comfort and Plaintiff's child in the Custody Action, and Plaintiff's allegations against Comfort center on her testimony and conduct during the Custody Action. Plaintiff's claims are fundamentally intertwined with his domestic dispute; the decisions in the Custody Action directly bear on Plaintiff's assertions about abuse of process and fraud. Continuing the present litigation before this Court would require it to “re-examine and reinterpret” decisions and 21 evidence presented in the underlying state proceedings, necessarily resulting in the Court “becom[ing] embroiled in the factual disputes” in those actions. Sprole, 2019 WL 4736241, at *6.
As explained infra, Section II.C, Plaintiff has already had a full and fair opportunity to litigate the decisions rendered in the Custody Action and the Fee and Disciplinary Proceedings.
c) Plaintiff's Claims are Also Barred by the Rooker-Feldman Doctrine
The Rooker-Feldman doctrine deprives federal courts of subject matter jurisdiction to consider “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court reviews of those judgments.” McKithen v. Brown, 626 F.3d 143, 154 (2d Cir. 2010). The doctrine “directs federal courts to abstain from considering claims when four requirements are met: (1) the plaintiff lost in state court, (2) the plaintiff complains of injuries caused by the state court judgment, (3) the plaintiff invites district court review of that judgment, and (4) the state court judgment was entered before the plaintiff's federal suit commenced.” Id. The doctrine bars not only claims that involve direct federal review of a state court decision, but also those claims “inextricably intertwined” with a state court's determination. Swiatkowski v. Bank of America, 103 Fed.Appx. 431, 432 (2d Cir. 2004). A federal claim is “inextricably intertwined with a state court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.” Mackenzie v. Donovan, 375 F.Supp.2d 312, 319 (S.D.N.Y. 2005) (internal citations and quotation marks omitted).
The elements of Rooker-Feldman are plainly met here. Plaintiff has repeatedly lost in trial court and on appeal in state court, decisions that were entered before Plaintiff filed suit in federal court. His claims seek federal review and remedy of the decisions in the Custody Action, the Disciplinary Proceeding, and the Fee Proceeding, decisions that he alleges deprived him of 22 access to his child, awarded legal fees against him, and ruined his professional standing. The TAC, while ultimately seeking relief against the named Defendants, is littered with grievances against the state courts presiding over these proceedings. In broad terms, Plaintiff alleges a grandiose conspiracy, involving even his own counsel, that tainted the state court actions. Plaintiffs' claims “thus hinge on the allegation of unlawful conduct in [the] underlying state court action[s], and they invite this Court to review the merits of [those] judgment[s].”
See, e.g., TAC 10-11 ¶¶ 24-25; 14-16 ¶¶ 31-36; 15 ¶ 34; 18-19 ¶¶ 41-42; 20 ¶¶ 44-45.
Kramer v. Dane, No. 17cv5253 (JFB) (SIL), 2018 WL 5077164, at *5 (E.D.N.Y. July 26, 2018), report and recommendation adopted, No. 17cv5253 (JFB) (SIL), 2018 WL 4489284 (E.D.N.Y. Sept. 19, 2018) (finding lack of subject matter jurisdiction under Rooker-Feldman where Plaintiff functionally challenged the validity of her divorce proceedings); see also Holland v. State of N.Y., 63 Fed.Appx. 532, 533-34 (2d Cir. 2003) (holding that federal court lacked subject matter jurisdiction under Rooker-Feldman as plaintiff's complaint effectively sought review of state matrimonial action); Zahl v. Kosovsky, No. 08cv8308 (LTS) (THK), 2011 WL 779784, at *6 (S.D.N.Y. Mar. 3, 2011), aff'd, 471 Fed.Appx. 34 (2d Cir. 2012) (lack of subject matter jurisdiction under Rooker-Feldman where all of Plaintiff's claims of injury in the form of lost contact with his child and untoward expenses arose “fundamentally from the state judges' decisions in the state court matrimonial proceedings”).
To the extent that Plaintiff claims that the State Court decisions were procured by fraud (TAC 29 ¶¶ 62-63; 64 ¶ 127; 65 ¶ 135; 66 ¶ 144), that does not salvage subject matter jurisdiction here. To find fraud in the state court decisions would require the Court to question the validity of a state court judgment. See Vossbrink v. Accredited Home Lenders, Inc., 773 F.3d 423, 427 (2d Cir.2014) (“To the extent [plaintiff] asks the federal court to grant him title to his property because the foreclosure judgment was obtained fraudulently, Rooker-Feldman bars [plaintiffs] claim. [Plaintiff] invites review and rejection of the state judgment”).
Accordingly, I RECOMMEND that the TAC also be dismissed for lack of subject matter jurisdiction under Rooker-Feldman to hear Plaintiff's claims. 23
B. Failure to State a Claim under Rule 12(b)(6)
Although a lack of subject matter jurisdiction normally deprives a court of jurisdiction to hear a Rule 12(b)(6) motion, given Plaintiff's repeated litigation and in an abundance of caution, I consider the merits of Defendants' Motions to Dismiss below. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the court must accept as true all non-conclusory factual allegations in the plaintiff's complaint, together with the contents of any documents “integral” to the complaint and any matters of which the Court may take judicial notice, and draw all reasonable inferences in favor of the plaintiff. See Doe v. Columbia Univ., 831 F.3d 46, 48 (2d Cir. 2016); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). While a complaint is not required to present “detailed factual allegations,” it must assert “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted).
To survive a motion to dismiss made under Rule 12(b)(6), the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, the non-conclusory factual allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
Plaintiff tacks conspiracy claims onto his abuse of process and fraud claims. (TAC 61 at ¶ 119-123; 65 at ¶ 131-138; 67 at ¶ 147-153). To state a claim for civil conspiracy under New York 24 law, a plaintiff must allege a primary underlying tort. Cohen v. Stevanovich, 722 F.Supp.2d 416, 437 (S.D.N.Y. 2010); Agostini v. Sobol, 304 A.D.2d 395, 757 N.Y.S.2d 555, 556 (2003) (“[C]onspiracy to commit a fraud is never of itself a cause of action”). To survive a motion to dismiss, “a complaint must contain more than general allegations in support of the conspiracy. Rather, it must allege the specific times, facts, and circumstances of the alleged conspiracy.” Brownstone Inv. Grp., LLC. v. Levey, 468 F.Supp.2d 654, 661 (S.D.N.Y. 2007) (internal citations and quotation marks omitted).
The Court applies New York law to Plaintiff's state law claims of abuse of process, conspiracy to commit abuse of process, fraud, conspiracy to commit fraud, and violations of N.Y. Judiciary Law § 487 . Landesbank Baden-W%20urttemberg v. RBS Holdings USA Inc., 14 F.Supp.3d 488, 501 (S.D.N.Y. 2014) (“A federal court sitting in diversity applies the law of the forum in which it sits”).
Even if Plaintiff's TAC were not dismissed for lack of subject matter jurisdiction, the entirety of the TAC should be dismissed for failure to state a claim.
a) Abuse of Process/Conspiracy to Commit Abuse of Process (Counts I & II)
Abuse of process “concerns the use of lawfully issued process to accomplish some unjustified purpose.” Manhattan Enter. Grp. LLC v. Higgins, 816 Fed.Appx. 512, 514 (2d Cir. 2020). “Under New York law, a plaintiff must demonstrate three elements in order to establish an abuse of process claim: that the defendant “(1) employs regularly issued legal process to compel performance or forbearance of some act (2) with intent to do harm without excuse or justification, and (3) in order to obtain a collateral objective that is outside the legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73, 80 (2d Cir. 1994).
A civil suit that is merely “maliciously motivated to achieve some incidental advantage” is insufficient to satisfy an abuse of process claim. Krellman v. Livingston, 25 406 N.Y.S.2d 881, 881 (2d Dep't 1978) (internal citations omitted); see also, e.g., Hernandez v. United States, 939 F.3d 191, 204 (2d Cir. 2019) (holding that allegations of improper motive are insufficient to establish abuse of process); Curiano v. Suozzi, 469 N.E.2d 1324, 1324 (N.Y. 1984) (“A malicious motive alone . . . does not give rise to a cause of action for abuse of process.”); Casa de Meadows Inc. (Cayman Is.) v. Zaman, 74 A.D.3d 917, 921 (1st Dep't 2010) (“If process has a legitimate purpose, the allegation that it was misused does not suffice to state a claim for abuse of process”).
(i) Plaintiff fails to allege claim of abuse of process or conspiracy to commit abuse of process against any of the Defendants
Plaintiff alleges that Comfort, Cohen, and Wallack committed abuse of process by engaging in “unlawful and tortious acts using the court process” for the “ulterior, collateral and/or improper purpose of inflicting undue financial harm” and damage his professional reputation. Plaintiff alleges that Defendants harmed him in order to gain an advantage in the child custody litigation, distract from their own misconduct, and deprive Plaintiff from accessing his child. (TAC 60 ¶ 117). Plaintiff also alleges conspiracy to commit abuse of process against Defendants. (TAC 62 ¶ 122).
Because Plaintiff has filed no Opposition to Defendants' Motions to Dismiss the TAC, and does not state with specificity what process was abused in Counts I and II, the Court has rifled through Plaintiff's rambling and oftentimes incoherent TAC to identify allegations tending towards abuse of process. With respect to Comfort and Wallack, the process complained of is the State Trial Court's Reference Order referring the issue of a fee award to a Special Referee, 26 who recommended that Comfort's request of $400,000 in counsel fees be granted. Plaintiff alleges that Comfort and Wallack initiated the Fee Proceeding in order to inflict financial harm upon Plaintiff and to restrict his access to his child. (TAC 34-36 ¶¶ 69-73).
As noted supra, Section I.D.a., the Special Referee's fee recommendation was adopted on February 15, 2018, by the New York Supreme Court. (Comfort Motion, Ex. 3).
Plaintiff's claim fails. Alleging malicious motive, without more, dooms an abuse of process claim. Nowhere in the TAC does Plaintiff allege any interference with his person or property after the issuance of lawful process. Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., 76 A.D.3d 556, 557, 907 N.Y.S.2d 255, 257 (2010) (finding failure to plead abuse of process claim where party only alleged improper motives of inflicting economic harm and obtaining tactical advantage in pending divorce, without alleging some interference in his person or property); Williams v. Williams, 23 N.Y.2d 592, 596 n. 1 (1969) (noting that abuse of process is a form of extortion and dismissing abuse of process claim where there were no allegations of unlawful interference with Plaintiff's person or property).
Plaintiff also alleges abuse of process by Cohen, asserting that she moved to quash a subpoena served upon her by Plaintiff when he sought to have her testify during the Fee Proceeding. (TAC 36 ¶ 74). Motion practice in civil lawsuits does not qualify as legal process sufficient to state an abuse of process claim. See Higgins, 816 Fed.Appx. at 515 (affirming dismissal of abuse of process claim where claim rested on defendant's use of appeals, objections, and motions).
Plaintiff makes vague and conclusory allegations with respect to a “scheme” entered into by Cohen and Wallack and Mr. Schorr, Plaintiff's former co-counsel in the Custody Action. 27 (TAC 37 ¶¶ 79-80; 53 ¶¶ 105-106). Plaintiff alleges that Mr. Schorr was “working in tandem” with Cohen and Wallack in order to deliberately sabotage Plaintiff's case (Id. 51 ¶ 104), and that as a result of Defendants' and Mr. Schorr's “perversion” of the Custody Action, Plaintiff was subjected to punitive findings by the State Trial Court and to disciplinary action by the New York Attorney Grievance Committee. (Id. 52 ¶ 105).
Nowhere in these allegations does Plaintiff allege the process used by Cohen and Wallack to “undermine” Plaintiff's position in the Custody Action (TAC 52 ¶ 105) and to lead the Attorney Grievance Committee to ultimately disbar Plaintiff. Plaintiff alleges a litany of misbehavior and misconduct by Mr. Schorr, but does not state at all how Defendants allegedly colluded with Mr. Schorr to, inter alia, destroy exculpatory evidence and engage in witness tampering. (TAC 53 ¶ 106). At most, Plaintiff's allegations amount to a generic accusation that Mr. Schorr was “working with” Defendants to undermine Plaintiff's case in the Custody Action and to “materially assist” in Defendants' joint effort to manufacture attorney discipline charges against him. (TAC 38 ¶ 79). Such speculation about communications between Mr. Schorr and Defendants is insufficient to state a plausible claim for abuse of process or conspiracy to commit abuse of process. Gilman v. Marsh & McLennan Companies, Inc., 868 F.Supp.2d 118, 133 (S.D.N.Y. 2012), aff'd, 654 Fed.Appx. 16 (2d Cir. 2016) (dismissing abuse of process claim where claim rested on allegations that defendants encouraged, convinced, or colluded with other parties to prosecute the plaintiffs); Medtech Prod. Inc. v. Ranir, LLC, 596 F.Supp.2d 778, 795 (S.D.N.Y. 2008) (dismissing plaintiff's civil conspiracy claim where allegations in support were conclusory and lacking in factual detail, and noting that “a bare conclusory allegation of conspiracy does not state a cause of action”). 28
Moreover, Plaintiff's failure to establish the underlying abuse of process of claim provides an additional basis for dismissal of his conspiracy to commit abuse of process claim. Cohen, 722 F.Supp.2d at 437 (dismissing conspiracy claim as a matter of law where Plaintiff failed to allege underlying tort); Ho Myung Moolsan Co. v. Manitou Min. Water, Inc., 665 F.Supp.2d 239, 257 (S.D.N.Y. 2009) (same).
b) Common Law Fraud/Conspiracy to Commit Fraud (Counts III, IV and VII)
Counts III, IV, and VII of the TAC assert claims for fraud and conspiracy to commit fraud against Cohen and Wallack. Plaintiff asserts that these Defendants fraudulently inflated counsel fees by proffering false positions during the Fee Proceedings (TAC 22 ¶ 1; 23 ¶ 2) and by requesting from Plaintiff fees for work that was unperformed and/or for which they were not entitled to collect fees. (TAC 63 ¶ 126).
To state a claim for common law fraud in New York, a plaintiff must allege: (1) a material misrepresentation or omission of fact; (2) made by defendant with knowledge of its falsity; (3) with intent to defraud; (4) reasonable reliance on the part of the plaintiff; and (5) resulting damage to the plaintiff. Crigger v. Fahnestock & Co., 443 F.3d 230, 234 (2d Cir. 2006). Additionally, Rule 9(b) requires a party alleging fraud to “state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). The Complaint must: “(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006) (internal citations and quotation marks omitted). In cases with multiple defendants, the plaintiff must “allege facts 29 specifying each defendant's contribution to the fraud.” Alnwick v. European Micro Holdings, Inc., 281 F.Supp.2d 629, 639 (E.D.N.Y. 2003).
Conspiracy to commit fraud requires that the plaintiff allege both the primary tort as well as the four elements of a conspiracy: (1) a corrupt agreement between two or more parties; (2) an overt act in furtherance of the agreement; (3) the parties' intentional participation in the furtherance of a plan or purpose; and (4) resulting damage or injury. Kottler v. Deutsche Bank AG, 607 F.Supp.2d 447, 463 (S.D.N.Y. 2009). While courts in this district are divided as to whether Rule 9(b) applies to claims for conspiracy to defraud (see, id.), Plaintiff must still establish the underlying tort of common law fraud to satisfy his conspiracy to defraud claim. Eaves v. Designs for Fin., Inc., 785 F.Supp.2d 229, 257 (S.D.N.Y.2011) (“[u]nder New York law, there is no independent tort for conspiracy”) (internal citations and quotations omitted; see also Antonios A. Alevizopoulos & Assocs., Inc. v. Comcast Int'l Holdings, Inc., 100 F.Supp.2d 178, 187 (S.D.N.Y. 2000) (“It is well settled under New York law that there is no substantive tort of conspiracy”).
In alleging that the defendant made a material misrepresentation of fact, the plaintiff must “specify the time, place, speaker, and content of the alleged misrepresentations.” Caputo v. Pfizer, Inc., 267 F.3d 181, 191 (2d Cir. 2001) (citing Luce v. Edelstein, 802 F.3d 49, 54 (2d Cir. 1986)). Plaintiff also must “explain how the misrepresentations were fraudulent and plead those events which give rise to a strong inference that the defendant had an intent to defraud, knowledge of the falsity, or a reckless disregard for the truth.” Id. (internal quotation marks and citations omitted). Further, the plaintiff's reliance on the alleged misrepresentation must be pleaded with particularity, as “it involves specific action or inaction” rather than merely a 30 mental state. In re Bear Stearns Comps. Inc. Secs., Derivative, and ERISA Litig., 995 F.Supp.2d 291, 313 (S.D.N.Y. 2014); see also Olson v. Major League Baseball, No. 20cv632 (JSR), 2020 WL 1644611, at *5 (S.D.N.Y. Apr. 3, 2020) (“[T]his Court agrees with the view that a plaintiff must allege with particularity that it actually relied upon the [defendant's] supposed misstatements.” (internal quotation marks and citations omitted)); Granite Partners, L.P. v. Bear, Stearns & Co., 58 F.Supp.2d 228, 258 (S.D.N.Y. 1999) (stating that plaintiffs are required to plead “facts that underlie . . . reliance”).
Nonetheless, absent intent to deceive, “statements of opinion cannot constitute fraud.” Bailey v. N.Y. Law Sch., No. 16cv4283 (ER), 2017 WL 6611582, at *10 (S.D.N.Y. Dec. 27, 2017); see also Catskill Dev., L.L.C. v. Park Place Entm't Corp., 547 F.3d 115, 134 (2d Cir. 2008) (“[S]tatements of opinion generally cannot constitute fraud.”); Canelle v. Russian Tea Room Realty LLC, No. 01cv0616 (DAB), 2002 WL 287750, at *5 (S.D.N.Y. Feb. 27, 2002) (stating that an employee's contract “is not that great” is not actionable as fraud).
(i) Plaintiff fails to allege a claim for conspiracy to commit fraud against Comfort
Plaintiff's conspiracy to commit fraud claim against Comfort rests mainly upon his assertion that she gave “materially false testimony” during the Fee Proceedings, representing that she never disputed Wallack's billing entries. (TAC 63 ¶ 126). Plaintiff alleges that Comfort later contradicted that testimony in a separate action. (Id.). While Plaintiff states that he relied upon Wallack's invoices and testimony, he fails to state with particularity that he justifiably relied on Comfort's alleged misrepresentation. (Id. 64 ¶ 129); Brady v. Goldman, No. 16cv2287 (GBD) (SN), 2016 WL 8201788, at *7 (S.D.N.Y. Dec. 5, 2016) (stating that common law fraud in 31 New York requires proof that plaintiff justifiably relied on defendant's material misrepresentation or omission of fact).
In the context of an adversarial proceeding, Plaintiff is hard-pressed to assert reliance on claims that he consistently disputed. See Red Ball Interior Demolition Corp. v. Palmadessa, 874 F.Supp. 576, 588-89 (S.D.N.Y. 1995) (finding that the plaintiff's alleged reliance on the defendant's statements was unreasonable given the plaintiff's history of regarding the defendant “with skepticism and mistrust and deal[ing] with him at arms' length, in an adversarial manner”). Rather than accept Comfort's alleged misrepresentation as true, Plaintiff continued to challenge it, as exemplified by his questioning of Comfort two years later in the D.C. Superior Court proceeding. (TAC 28 ¶ 61). Combined with his already hostile and suspicious attitude towards Comfort, the adversarial setting of the alleged misrepresentation precludes any assertion of reliance by Plaintiff. Palmadessa, 874 F.Supp. at 588-89; see also G-I Holdings v. Baron & Budd, 238 F.Supp.2d 521, 542 (S.D.N.Y. 2002) (finding that where a party “distrusted, did not know to be true, and would not accept” sworn affidavits, any asserted reliance is unjustifiable).
Because I find that Plaintiff has failed to establish an underlying claim for fraud to base his conspiracy claim against Comfort, his conspiracy claim is unsupported and should be dismissed. Eaves, 785 F.Supp.2d at 257.
(ii) Plaintiff fails to allege a claim of fraud or conspiracy to commit fraud against Wallack
Plaintiff's fraud claims against Wallack also fail. Plaintiff's TAC fails to show (1) justifiable reliance on the part of Plaintiff and (2) fraudulent intent on the part of the Defendants, two of 32 the requisite elements of a fraud claim. See In re Bear Stearns Companies, Inc. Sec., Derivative, & ERISA Litig., 995 F.Supp.2d at 313 (dismissing common law fraud claim where pled facts did not allege reliance on any particular misstatements); Steadman v. Citigroup Glob. Markets Holdings Inc., No. 21cv02430 (PGG) (RWL), 2022 WL 1051157, at *14 (S.D.N.Y. Mar. 15, 2022) (dismissing fraud claim where plaintiffs did not adequately allege that defendant acted with intent to commit or assist in fraud).
New York law precludes a party from justifiably relying “on the legal opinion or conclusions of his or her adversary's counsel,” even where a duty to speak truthfully exists. I.L.G.W.U. Nat'l Ret. Fund v. Cuddlecoat, Inc., No. 01cv4019 (BSJ), 2004 WL 444071, at *3 (S.D.N.Y. Mar. 11, 2004) (quoting Aglira v. Julien & Schlesinger, P.C., 631 N.Y.S.2d 816, 820 (1st Dep't 1995)). Thus, that Plaintiff expected Wallack to present truthful accounts for the work performed in the Custody Action and Fee Proceedings does not end the reliance inquiry. (TAC 63 ¶ 126). In this case, where the party who allegedly committed the fraud is an adversary, it stretches credulity to assert that Plaintiff took Wallack's testimony at face value and relied on it as the truth. Sammy v. Haupel, 170 A.D.3d 1224, 1226-27, 97 N.Y.S.3d 269, 272 (2019) (finding that plaintiff did not adequately plead reliance in fraud claim where the allegedly false statements “undertaken in the course of adversarial proceedings and were fully controverted”).
Plaintiff also fails to sufficiently plead fraudulent intent. Specifically, Rule 9(b) compels plaintiffs to assert facts demonstrating (1) a defendant's motive and opportunity to commit fraud, or (2) “strong circumstantial evidence of conscious misbehavior or recklessness.” Eaves, 785 F.Supp.2d at 247 (internal citations omitted). Plaintiff satisfies neither prong of this test. General allegations of motive applicable to any individual in the defendant's position render the 33 claim deficient. See Matsumura v. Benihana Nat'l Corp., 542 F.Supp.2d 245, 255 (S.D.N.Y. 2008) (holding that the mere fact that the defendant occupied a managerial position within the corporation did not establish motive); Renner v. Chase Manhattan Bank, No. 98cv926 (CSH), 2000 WL 781081, at *10 (S.D.N.Y. June 16, 2000) (finding that the defendant's alleged incentive to attract business due to his managerial role was insufficient to draw an inference of fraudulent intent); see also In re Fannie Mae 2008 Secs. Litig., 742 F.Supp.2d 382, 396 (S.D.N.Y. 2010) (“While personal interest is sufficient to establish motive . . . a defendant's general desire to earn management fees is insufficient to satisfy Rule 9(b)”). In fact, the Second Circuit requires that plaintiffs plead “concrete benefits that could be realized by one or more of the false statements” beyond incentives shared by nearly all similarly situated individuals. Matsumura, 542 F.Supp.2d at 255 (internal quotation marks and citations omitted). Here, Plaintiff has failed to identify Wallack's specific motive for misrepresenting billing disputes with Comfort. The only motive alleged is to increase legal fees, a common and justifiable incentive of any litigator. (TAC 63 ¶ 126).
Similarly, Plaintiff fails to establish any evidence of conscious misbehavior or recklessness, which requires “conduct which is highly unreasonable and which represents an extreme departure from the standards of ordinary care.” Chill v. Gen. Elec. Co., 101 F.3d 263, 270 (2d Cir. 1996). Plaintiff's conclusory allegations that Wallack “engaged in repeated acts of deceit . . . for an illicit purpose” of “unlawfully inflat[ing] counsel fees” are insufficient to establish recklessness. (TAC 63 ¶ 126). Given that the issue of the legitimacy of the Wallack's legal bills was resolved in state-court proceedings, Plaintiff's fraud claim against Wallack rests on Wallack's allegedly false testimony in the Fee Proceeding. (Id.); (Comfort Motion, Ex. 3 at 121-122). 34 A single statement concerning Wallack's interactions with his client is insufficient to meet the “highly unreasonable” threshold of recklessness. Chill, 101 F.3d at 269.
Because Plaintiff's fraud claim against Wallack fails, his conspiracy claim also fails. (See supra, Section II.b).
(iii) Plaintiff's claims for fraud and conspiracy to commit fraud against Cohen also fails
Plaintiff's fraud claims against Cohen are based upon Cohen's alleged misrepresentation of Wallack's character during the Fee Proceedings, during which Cohen characterized Mr. Wallack as “an honorable man.” (TAC 37-38 ¶¶ 76-78). Statements of opinion are not actionable as fraud. See Catskill Dev., L.L.C., 547 F.3d at 134; Bailey, 2017 WL 6611582, at *10. This general rule can be overcome if the plaintiff sufficiently pleads an intent to deceive (id.), but Plaintiff's TAC consists of conclusory allegations of fraudulent intent with respect to all Defendants; nowhere does Plaintiff allege a specific intent to defraud. (See TAC 36-38 ¶¶ 74-78). Given Rule 9(b)'s particularity requirement, Plaintiff has failed to create a strong inference of Cohen's mental state, which defeats his fraud claim. Eaves, 785 F.Supp.2d at 247. Further, any inference of fraud on Cohen's part that could be drawn from Plaintiff's factual pleadings is less plausible than alternative inferences, namely that Cohen had no reason to question Wallack's character, hesitated to slander Wallack without supporting evidence, or acted with a motive other than the child's best interests in mind. (TAC 37-38 ¶¶ 76-78). Thus, Plaintiff's TAC fails to create an inference of fraudulent intent sufficient to meet Rule 9(b)'s heightened pleading standard. Accordingly, Plaintiff's fraud and conspiracy to commit fraud claims against Cohen should also be dismissed. 35
c) N.Y. Judiciary Law § 487 (Counts V and VI)
“Section 487 of [N.Y. Judiciary Law] is a penal statute which provides both criminal and civil penalties, including a cause of action for treble damages against a New York ‘attorney . . . who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with the intent to deceive the court or any party.'” Kaye Scholer LLP v. CNA Holdings, Inc., No. 08cv5547 (NRB), 2010 WL 1779917, at *1 (S.D.N.Y. Apr. 28, 2010) (quoting N.Y. Judiciary Law § 487). Importantly, Section 487 only provides relief for an attorney's “misconduct while acting in the capacity as an attorney.” Gilman v. Marsh & McLennan Cos., 654 Fed.Appx. 16, 17 (2d Cir. 2016).
To demonstrate a violation of Section 487, a plaintiff must meet a high burden of proof, because “relief under the statute must be carefully reserved for the extreme pattern of legal delinquency.” King v. Fox, No. 97cv4134 (RWS), 2004 WL 68397, at *7 (S.D.N.Y. Jan. 14, 2004) (internal citations and quotation marks omitted); see also Ray v. Watnick, 182 F.Supp.3d 23, 29 (S.D.N.Y. 2016), aff'd, 688 Fed.Appx. 41 (2d Cir. 2017) (“New York State courts interpreting the statute, as well as federal courts construing the state court decisions, have concluded that liability attaches under these Statutes only if the deceit is ‘extreme' or ‘egregious.'”). Thus, the plaintiff must allege “a chronic, extreme pattern of legal delinquency.” King, 2004 WL 68397, at *7. In other words, “even egregious misconduct will not rise to the level of a violation of [Section] 487 if there is no pattern of intentional deceit or wrongdoing.” Id.; see also Ray v. Balestriere Fariello LLP, No. 18cv11211 (KPF), 2019 WL 5212359, at *7 (S.D.N.Y. Oct. 16, 2019) (“A civil action under this statute is warranted only where the attorney engaged in a chronic, extreme pattern of delinquency”) (internal citations and quotation marks omitted); but see Trepel v. Dippold, No. 04cv8310 (DLC), 2005 WL 1107010, at *4 (S.D.N.Y. May 9, 2005) (“A single 36 act or decision, if sufficiently egregious and accompanied by an intent to deceive, is sufficient to support liability”). This high standard for misconduct “affords attorneys wide latitude in the course of litigation to engage in written and oral expression consistent with responsible, vigorous advocacy.” O'Callaghan v. Sifre, 537 F.Supp.2d 594, 596 (S.D.N.Y. 2008).
Accordingly, Section 487 requires a plaintiff to establish that defendants: “(1) are guilty of deceit or collusion, or consent to any deceit or collusion; [] (2) had an intent to deceive the court or any party . . . [and (3)] that damages were caused by the deceit.” Iannazzo v. Day Pitney LLP, No. 04cv7413 (DC), 2007 WL 2020052, at *11 (S.D.N.Y. July 10, 2007). If the plaintiff is aware of an attorney's violation of Section 487 at the time of the attorney's alleged misconduct, “the victim's exclusive remedy is to bring an action in the course of that same proceeding.” Seldon v. Bernstein, No. 09cv6163 (AKH), 2010 WL 3632482, at *2 (S.D.N.Y. Sept. 16, 2010) (internal citations and quotation marks omitted) (emphasis added). An exception exists where “the attorney's misconduct was part of a broader fraudulent scheme, greater in scope than the issues determined in the underlying proceeding.” Oorah, Inc. v. Kane Kessler, P.C., 768 Fed.Appx. 69, 70 (2d Cir. 2019) (citing Specialized Indus. Servs. Corp. v. Carter, 890 N.Y.S.2d 90, 92 (2d Dep't 2009)). Where the plaintiff “has alleged only fraudulent acts that took place in the underlying litigation,” this exception is inapplicable. Heriveaux v. Lopez-Reyes, 779 Fed.Appx. 758, 760 (2d Cir. 2019).
(i) Claim as to Comfort
Plaintiff's allegation of misconduct by Comfort under Section 487 fails as a matter of law because she acted as a party, not an attorney, within the litigation at issue. This serves to bar a 37 Section 487 claim against her, even if she is in fact a licensed attorney. (TAC 3 ¶ 8); Gilman, 654 Fed.Appx. at 17.).
(ii) Claim as to Wallack
Plaintiff alleges that Wallack violated Section 487 by: 1) allegedly falsely billing entries for work performed during the Custody Action; and 2) committing acts of deceit during the Disciplinary Proceeding against Plaintiff. (TAC 66 ¶¶ 140, 144).
The allegation that Wallack misrepresented bill entries in Comfort's fees falls short of the “chronic, extreme pattern of legal delinquency” required to violate Section 487. See, e.g., King, 2004 WL 68397, at *7; (TAC 30 ¶ 65). Plaintiff's allegations of Defendants' “acts of deceit and collusion” with Mr. Schorr are vague, conclusory, and do not specify actual conduct on the part of Defendants that would establish a pattern of behavior against him. This failure to identify a pattern of deceit on the part of Wallack is fatal to his Section 487 claim. Further, Plaintiff alleges that there are multiple accusations and lawsuits from former clients against Wallack because of fraudulent padding of bills. (Id. 31-34 ¶¶ 67-68). However, these actions, even if true, have no causal link to Plaintiff's injuries. Additionally, even if Wallack's alleged misconduct were sufficient to satisfy Section 487, Plaintiff's remedy would lie in “moving . . . to vacate the civil judgment due to its fraudulent procurement, not [filing] a second plenary action collaterally attacking the judgment in the original action.” Michelo v. Nat'l Collegiate Student Loan Tr. 2007-2, 419 F.Supp.3d 668, 710 (S.D.N.Y. 2019). Accordingly, Plaintiff fails to establish a claim under NY Judiciary Law § 487.
(iii) Claim as to Cohen 38
Finally, Plaintiff alleges that Cohen violated Section 487 by allegedly attempting to conceal Wallack's financial fraud in the Fee Proceedings. (TAC 36-37 ¶ 74).
In support of his allegation that Cohen participated in a fraudulent scheme to inflate Wallack's legal bills, Plaintiff only cites Cohen's statement in the Fee Proceeding that “Mr. Wallack is an honorable man.” (Id. ¶ 76). Such a statement of opinion can satisfy neither the heightened standard of repeat acts of legal delinquency, nor the lower standard of a single egregious act of misconduct. See Michelo, 419 F.Supp.3d at 712 (finding that an attorney's unfounded “characterizations of a party's conduct and motivations” were insufficient to violate Section 487). Cohen testifying to her personal opinion of Wallack's character does not demonstrate “egregious misconduct” or a “pattern of intentional deceit or wrongdoing.” King, 2004 WL 68397, at *7.
Second, to establish a violation of Section 487, Plaintiff must demonstrate that the attorney's deceit or collusion caused his damages. Schweizer v. Mulvehill, 93 F.Supp.2d 376, 407 (S.D.N.Y. 2000) (“[T]o recover under section 487, a plaintiff must plead and prove both actual deceit by the attorney . . . and causation, that is, that the deceit or collusion actually caused plaintiff's damages”). Even assuming Cohen's statement constituted an egregious misrepresentation sufficient to violate Section 487, Referee Sugarman's decision in the Fee Proceeding did not turn on Cohen's evaluation of Wallack's character. See M'Baye v. World Boxing Ass'n, No. 05cv9581 (DC), 2009 WL 2245105, at *11 (S.D.N.Y. July 28, 2009) (finding that, without evidence that the court relied on the attorney's alleged misrepresentations in resolving the case, the plaintiff failed to plead causation). In fact, Referee Sugarman's Report and Recommendation made no mention of Cohen's alleged misstatement, relying instead on 39 Plaintiff's own “egregious” conduct in making her determination that Plaintiff sought to and did increase Comfort's legal fees. (Comfort Motion, Ex. 4 at 146).
Lastly, Plaintiff's allegation against Cohen under Section 487 is subject to the same collateral attack limitation as described above with respect to Wallack. Given Plaintiff's failure to plead that Cohen's alleged deceit or collusion existed outside the underlying state action, Plaintiff's recourse was to pursue relief within the state court process, not to collaterally attack the state-court determination in federal court. Michelo, 419 F.Supp.3d at 711.
C. Collateral Estoppel
Collateral estoppel “prevents parties or their privies from relitigating in a subsequent action an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v. Simon, 310 F.3d 280, 288 (2d Cir. 2002). For collateral estoppel to bar a court from considering an action, four criteria must be satisfied: “(1) the identical issue was raised in a previous proceeding; (2) the issue was ‘actually litigated and decided' in the previous proceeding; (3) the party had a ‘full and fair opportunity' to litigate the issue; and (4) the resolution of the issue was ‘necessary to support a valid and final judgment on the merits.'” Boguslavsky v. Kaplan, 159 F.3d 715, 720 (2d Cir. 1998) (internal citations omitted); see also Bifolck v. Philip Morris USA Inc., 936 F.3d 74, 79 (2d Cir. 2019) (internal citations omitted).
When parties absent from the original proceeding(s) become defendants in subsequent litigation, non-mutual collateral estoppel permits the new defendant(s) “to rely on . . . collateral estoppel to bar claims or issues, . . . assuming the issue was fully and fairly litigated in the first instance.” Ranasinghe v. Kennell, No. 16cv2170 (JMF), 2017 WL 384357, at *3 40 (S.D.N.Y. Jan. 25, 2017); Lipin v. Hunt, No. 14cv1081 (RJS), 2015 WL 1344406, at *5 (S.D.N.Y. Mar. 20, 2015) (“The doctrine of non-mutual defensive collateral estoppel ‘precludes a plaintiff from relitigating identical issues by merely switching adversaries.'” (internal citations omitted)).
Once a competent court has decided an issue, that determination “is conclusive on subsequent suits based on a different cause of action involving a party to the prior litigation.” Zappin v. Cooper, 2018 WL 708369 at *15 (internal citations and quotation marks omitted). Federal courts “must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see also Allen v. McCurry, 449 U.S. 90, 96 (1980) (“Congress has specifically required all federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so ...”). Additionally, a federal court must apply the collateral estoppel rules of the state that ordered the prior judgment pertaining to the issue. See LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002).
The burden of proving the applicability of collateral estoppel is apportioned between the parties. Schwartz v. Pub. Adm'r of Cty. of Bronx, 24 N.Y.2d 65, 73 (1969). Specifically, the non-moving party bears the burden of showing that he lacked a full and fair opportunity to litigate his claims in the proceeding(s) at issue. Id. The moving party, on the other hand, bears the burden of showing an identity of the issues. See Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 730 (2d Cir. 2001). 41
a) The Doctrine of Collateral Estoppel Bars Plaintiff's Fraud and Conspiracy to Commit Fraud Claims
(i) Plaintiff's Claims for Fraud and Conspiracy to Commit Fraud are Identical to Material Factual Issues Previously Decided in State Court
While neither the Fee Proceeding nor the Disciplinary Proceeding resolved Plaintiff's fraud claim, (ECF 149 at 22; ECF 150 at 24) collateral estoppel is concerned with “single, certain and material point[s] arising out of the allegations and contentions of the parties,” rather than legal claims. Bifolck, 936 F.3d at 81 (internal citations omitted). Thus, that the state-court proceedings did not address Plaintiff's fraud claims on their face is immaterial if the underlying facts and past events are identical. Id. (internal citations omitted).
In his TAC, Plaintiff proposes three main issues: (1) that the Defendants allegedly conspired to inflate legal fees by prolonging the litigation and falsifying billing entries; (2) that Defendants colluded and engaged in acts of deceit to obtain disciplinary sanctions against Plaintiff; and (3) that the Defendants entered into an agreement with Mr. Schorr to deceive and harm Plaintiff. (TAC 60 ¶ 117; 62 ¶ 122; 63-64 ¶ 126; 66 ¶ 144; 67 ¶ 149). While Plaintiff places new labels on his allegations against the Defendants, they arise from the same facts and events that were litigated in state court. Indeed, the State Trial Court's February 27, 2015 order specifically rejected Plaintiff's allegation that Comfort and Wallack deliberately delayed the litigation to drive up legal fees. (Wallack Decl., Ex. E at 45). The State Trial Court directly refuted Plaintiff's allegation that Defendants' alleged untimely filing of motion papers and use of the phrase “blah...blah...blah” constituted obstructionist conduct. (Id. at 46). Similarly, Special Referee Sugarman, presiding over the Fee Proceedings, rejected Plaintiff's contention that Wallack's bills were insufficiently detailed, an assertion Plaintiff raises in the present action. 42 (Id., Ex. I at 22). In all, Plaintiff's fraud and conspiracy to commit fraud claims are restatements of prior allegations of misconduct that were squarely rejected in the state-court proceedings.
As for the Disciplinary Proceeding, this Court has already determined that collateral estoppel is applicable where the material factual issues are the same as those that were necessary to serve as foundation for the disciplinary sanctions decision. Zappin v. Cooper, 2018 WL 708369 at *17-18. Just as in that case, Plaintiff bases his present claims upon assertions of misconduct that have already been decided by the Appellate Division, First Department:
[P]laintiff's misconduct exhibited with regard to the OPMC complaint is not an isolated incident. Regrettably, it is but one instance in a pattern of improper behavior. Although the hope was that [P]laintiff would heed the [Trial] [C]ourt's admonitions and represent himself according to the dictates of his profession, that has not happened. [ ] Under these circumstances, where warnings have had no effect on [P]laintiff's conduct, it is incumbent-for the integrity of the judicial process, as well as for the protection of the other litigants and the child-that penalties be imposed.”Id. (quoting Sanctions Decision: Wallack Decl., Ex. F at 21).
The claims involving Plaintiff's access to the child similarly contain material factual issues that are identical to those analyzed, decided and affirmed by the state courts within the Custody Action. (Id., Ex. A at 87-96; Ex. N at 1-6).
(ii) Plaintiff Was Afforded a Full and Fair Opportunity to Litigate His Fraud Claims in the State-Court Actions
Plaintiff was afforded a full and fair opportunity to litigate his fraud claims in the state court actions. The forum in which Plaintiff's contentions were first heard, the New York State Supreme Court, offered opportunities for Plaintiff to present evidence and witnesses, make his case, and cross-examine witnesses. Moreover, Plaintiff was able to file an appeal of every order 43 and decision entered by the New York State Supreme Court. Further, the issues that Plaintiff raises in the present action-that the Defendants prolonged the litigation to inflate legal fees in order to financially harm Plaintiff and to undermine his professional licensure to limit his visitation rights-were at the heart of the Custody Action and the Fee and Disciplinary Proceedings. In fact, the actual extent of litigation over the issues was substantial: the State Trial Court's decision regarding custody consists of over 100 pages, in which issues of visitation rights, fees, allegations of misconduct and other claims are discussed in depth. Moreover, Plaintiff was able to submit affidavits, counter claims and even cross examine the parties in the Fee and Disciplinary Proceedings. (See generally, Cohen Decl., Exs. A, E, D, F, I, K, M, N). Accordingly, Plaintiff's attempt to challenge the fullness and fairness of the state-court actions fails.
The only appeal not affirmed by the First Department Appellate Court was the attorney's fees proceedings, and that was because Plaintiff did not perfect his appeal. (See Wallack Motion at 18).
(iii) The Factual Issues in the State Trial Court Are Decisive of the Present Fraud Claims
To determine if a factual issue is decisive for purposes of collateral estoppel, the issue would have to “prove or disprove, without more, an essential element of any of the claims set forth in the complaint.” Zappin v. Cooper, 2018 WL 708369 at *22 (internal citations and quotation marks omitted). Plaintiff's claims, as pleaded, are necessarily predicated upon Defendants actions, actions which were discussed and adjudicated in the Orders involving the Custody Action and Fee and Disciplinary Proceedings. Specifically, the State Courts considered the factual issues underlying Plaintiff's claims: the Appellate Division, First Department 44 unanimously affirmed the Custody Proceeding, finding it “fair and impartial” (Comfort Motion, Ex. 2 at 113). The First Division also affirmed the decision arising from the Disciplinary Proceeding, saying it was “amply justified” in disbarring Plaintiff based on the State Court's findings in the Custody Action. Lastly, the Special Referee in the Fee Proceeding was fully apprised of allegedly fraudulent statements made by Wallack. (Id., Ex. 3 at 147). All of these findings form the basis of Plaintiff's fraud claim.
As stated supra, Section II.C.a., Plaintiff has already been collaterally estopped by this Court from relitigating the State Court decisions in Zappin v. Cooper, in which Plaintiff brought suit against Justice Cooper, as presiding judge over the Custody Action, for defamation from the alleged distribution of the monetary sanctions order against Plaintiff. In that decision, Judge Failla held that “the previously decided facts are decisive of the present claims.” 2018 WL 708369 at *22 (referring to the facts surrounding the monetary sanctions order against Plaintiff).
b) Abuse of process, conspiracy to commit abuse of process, and violations of NY Judiciary Law § 487.
Collateral estoppel also bars claims or defenses that were or could have been raised in an earlier case in which the same parties were involved, if that case resulted in a judgment on the merits. Claim preclusion “prevents parties from raising issues that could have been raised and decided in a prior action-even if they were not actually litigated.” Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc., 140 S.Ct. 1589, 1594 (2020). To determine if a claim could have been raised in an earlier action, courts consider whether the present claim arises out of the same transaction or series of transactions asserted in the earlier action, “or, in other words, whether facts essential to the second suit were present in the first suit.” Zappin v. Cooper, 2020 WL 4753036, at *4 (S.D.N.Y., 2020).
Plaintiff's abuse of process, conspiracy to commit abuse of process, and violations of NY Judiciary Law § 487 center on allegations against his former co-counsel Mr. Schorr, who he 45 asserts conspired with Defendants to cause him reputational and financial harm and prevent him from accessing his child. (TAC 53-55 ¶¶ 106, 107; 59 ¶ 110). These allegations rely on statements made to Plaintiff by two unnamed individuals informing Plaintiff of Defendants' alleged conspiracy “beginning in March of 2020.” (Id. 38 ¶ 80; 59 ¶ 110). While March 2020 post-dates the prior state court adjudications, “[a]s a general rule, newly discovered evidence does not preclude the application of res judicata unless the evidence was either fraudulently concealed or could not have been discovered with due diligence.” Saabirah El v. City of New York, 300 Fed.Appx. 103, 105 (2d Cir. 2008); Saud v. Bank of New York, 929 F.2d 916, 919 (2d Cir. 1991).
Nowhere in the TAC does Plaintiff assert that information uncovering the alleged conspiracy between Defendants or their efforts to commit abuse of process was either fraudulently concealed or could not have been discovered earlier. Indeed, Plaintiff indicates in the TAC that he had long been on notice of Mr. Schorr's alleged propensity to sabotage cases, asserting that he knew as early as the spring of 2015 that Mr. Schorr could be “devious” and had “a poor reputation in the court system.” (TAC 46 ¶ 94). The new allegations are therefore insufficient to save Plaintiff's claims from the preclusive effect of collateral estoppel. See Barash v. N. Tr. Corp., No. 07cv5208 (JFB) (ARL), 2009 WL 605182, at *9 (E.D.N.Y. Mar. 6, 2009) (finding that res judicata barred action where plaintiff failed to assert that alleged new evidence of fraud was fraudulently concealed); Almazon v. JPMorgan Chase Bank, Nat'l Ass'n, No. 19cv4871 (VEC), 2020 WL 1151313, at *14 (S.D.N.Y. Mar. 9, 2020), appeal dismissed (Aug. 4, 2020) (rejecting plaintiff's argument that new evidence of conversion saved her claim from res judicata where there was no assertion that the new evidence was concealed from plaintiff). 46
Accordingly, while Plaintiff did not raise claims identical to those concerning Mr. Schorr in the state court proceeding, he does not explain why he could not have raised them sooner and thus his claims are barred by res judicata. Zappin v. Cooper, 2020 WL 4753036, at *4 (S.D.N.Y., 2020) (finding Plaintiff's claims for abuse of process and retaliation barred by res judicata where Plaintiff could have raised them in earlier proceeding).
III. Particular Issues With Respect to Cohen: AFC Immunity
A. AFC Immunity/Grievant Privilege
Law guardians are entitled to quasi-judicial immunity for actions that take place within the scope of their appointment. Yapi v. Kondratyeva, 340 Fed.Appx. 683, 685 (2d Cir. 2009); see also Bey v. New York, No. 11cv3296 (JS) (WDW), 2012 WL 4370272, at *9 (E.D.N.Y. Sept. 21, 2012) (“[c]ourts in New York have consistently held that law guardians are entitled to absolute quasi-judicial immunity for actions taken within the scope of their appointment)”; Bluntt v. O'Connor, 737 N.Y.S.2d 471, 478 (4th Dep't 2002) (“Most courts that have considered suits by disgruntled parents against attorneys appointed by courts to protect children in custody disputes have granted, on public policy grounds, absolute quasi-judicial immunity to the attorneys for actions taken within the scope of their appointments”).
Absolute immunity is applicable “where the individual serves as an arm of the court . . . or where the individual conducts activities that are inexorably connected with the execution of [court] procedures and are analogous to judicial action.” Dowlah v. Dowlah, No. 09cv2020 (SLT) (LB), 2010 WL 889292, at *6 (E.D.N.Y. Mar. 10, 2010) (internal citations and quotation marks omitted). Specifically, “immunity is justified and defined by the functions it protects and serves, not by the persons to whom it attaches.” Lewittes v. Lobis, 47 No. 04cv0155 (JSR) (AJP), 2004 WL 1854082, at *11 (S.D.N.Y. Aug. 19, 2004). Under that formulation, a court-appointed law guardian is considered an “arm of the court” in advocating for a child's best interests and “provid[ing] a crucial service to the Family Court.” Dowlah, 2010 WL 889292, at *7.
As the law guardian for Plaintiff's child in the Custody Action, Cohen is entitled to quasi-judicial immunity, unless Plaintiff sufficiently alleges that Cohen “acted outside their judicial mandate.” Kramer, 2018 WL 5077164 at *8. Plaintiff's claims against Cohen are based on her testimony regarding Wallack's character during the Fee Proceeding, which was testimony given “within the scope of [her] employment.” (TAC ¶ 74-78); Holland v. Morgenstern, No. 12cv4870 (ARR) (VVP), 2013 WL 2237550, at *4 (E.D.N.Y. May 20, 2013). The Fee Proceeding arose directly from the Custody Action, in which Cohen was undoubtedly entitled to quasi-judicial immunity for representing the child. See, e.g., Kramer, 2018 WL 5077164, at *7. In speaking to Wallack's character during the Fee Proceeding, Cohen was not acting “under [her] own initiative.” Holland, 2013 WL 2237550, at *4. Without further assertions that the alleged misconduct exceeded the scope of [her] appointment, all claims against Cohen must be dismissed on grounds of quasi-judicial immunity. See Lewittes, 2004 WL 1854082, at *12 (dismissing claim against guardian ad litem on grounds of quasi-judicial immunity).
IV. Filing Injunction
Cohen asks the Court to issue a pre-filing injunction preventing Plaintiff from filing further actions related to the Custody Action and/or Disciplinary Proceeding, including any actions seeking to collaterally attack the decisions rendered in those proceedings, without prior court approval. (Cohen Motion at 42). Cohen argues that Plaintiff is the definition of a vexatious litigant, having filed at least 20 other collateral litigations against the participants of the state 48 court actions and regurgitating the same fundamental complaint: that all involved in the state court proceedings was part of a grand conspiracy to harm him personally, professionally, and financially, and that he was prevented from adequately litigating against the conspiracy. (Id. at 32). This Court notes that Judge Ramos has already enjoined Plaintiff from filing any new lawsuits in this District against Justice Cooper, the State of New York, any New York State entity or agency, or any other current or former New York State judge, official, or employee arising out of the Custody Action or Disciplinary Proceeding. See Zappin v. Cooper, No. 20cv2669 (ER), 2022 WL 985634, at *11 (S.D.N.Y. Mar. 31, 2022).
This Court's authority to enjoin litigants from vexatious litigation is “beyond peradventure.” Safir v. U.S. Lines, Inc., 792 F.2d 19, 23 (2d Cir. 1986); In re Martin-Trigona, 9 F.3d 226, 228 (2d Cir. 1993) (“[C]ourts may resort to restrictive measures that except from normally available procedures litigants who have abused their litigation opportunities”); Zappin v. Cooper, 2022 WL 985634, at *7 (S.D.N.Y. Mar. 31, 2022) (“A court's power to restrict the litigation of abusive and vexatious litigants is an ‘ancient one' that is now codified at 28 U.S.C. § 1651(a), the All Writs Act”) (internal citations and quotation marks omitted). Consequently, the Second Circuit has held that courts should consider five factors when determining whether a litigant's behavior merits a filing injunction:
(1) The litigant's history of litigation and in particular whether it entailed vexatious, 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; and49
(5) whether other sanctions would be adequate to protect the courts and other parties.Safir, 792 F.2d at 24. Ultimately, the question before the court is whether a litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process and harass other parties. Id.
Each Safir factor is amply satisfied with respect to Plaintiff's conduct. First, Plaintiff has, at this juncture, filed at least 21 lawsuits spanning state and federal courts in New York and West Virginia. All of these lawsuits stem from the same material facts and raise the same arguments in relation to the Custody Action and the Fee and Disciplinary Proceedings, arguments that have been rejected time and time again by different courts. There is also no question that these suits are the definition of vexatious and harassing: Plaintiff sues the same parties and individuals repeatedly in multiple fora while behaving so egregiously that he has been rebuked numerous times by manifold judges. See Zappin v. Cooper, 2022 WL 985634, at *8 (S.D.N.Y. Mar. 31, 2022) (setting out the many instances in which Plaintiff has defied court orders, filed meritless actions, and generally pursued his claims in “a dilatory and disrespectful manner”).
Second, it is apparent that Plaintiff does not have an objective good faith expectation of prevailing in these suits. The factual findings in the Custody Action and the Fee and Disciplinary Proceedings are at the heart of every lawsuit, and the validity of those factual findings has been affirmed numerous times. At least six of his past federal lawsuits have been dismissed with prejudice, including on grounds of res judicata and for lack of subject matter jurisdiction. 50 Plaintiff's continued filing of the same duplicative lawsuits therefore evinces either a lack of respect for the decisions of the federal courts or an incredulous inability to read those decisions. Moreover, Plaintiff has filed a number of state court actions only to later abandon them, and has repeatedly demonstrated a lack of investment in his federal lawsuits, as “evidenced by his repeated flouting of court-imposed deadlines, successive failures to abide by court orders, and generally dilatory conduct.” See Zappin v. Cooper, 2022 WL 985634, at *8. This Court is accordingly unable to ascribe a good faith motive to Plaintiff's motives in pursuing litigation related to the Custody Action.
See supra, Section I.
Third, as described supra, Section II, Plaintiff's pro se status does not entitle him to the “special solicitude” normally reserved for litigants proceeding without counsel. Plaintiff has a degree from Columbia Law School and litigation experience as an associate at several well-regarded law firms. Id. at *9. Importantly, even pro se parties are not exempt from the consequences of harassing and vexatious litigation. Lipin v. Hunt, 573 F.Supp.2d 836, 845 (S.D.N.Y. 2008) (noting that “a court's authority to enjoin vexatious litigation extends equally over pro se litigants” and enjoining pro se plaintiff with history of vexatious litigation from bringing further lawsuits related to underlying claim).
Fourth, Plaintiff's unending pursuit of revenge litigation against those involved in the State Court Proceedings has resulted in needless expense to other parties and imposed “substantial and continuing burdens on the courts.” Zappin v. Cooper, 2022 WL 985634, at *9. There is no question that Defendants have been forced to incur enormous expenses of time, resources, and energy in defending against Plaintiff's claims, and have also likely suffered reputational harm from the acrimonious and hostile allegations contained in Plaintiff's public 51 complaints. Additionally, Plaintiff's lawsuits are also a drain on the courts, requiring processing by the clerk's staff, evaluation by defendants' counsel, and consideration by the presiding judge. Id. (noting that at least three courts have commented on Plaintiff's “wasteful and harassing tactics”).
Lastly, there are no other sanctions that would adequately protect the courts and parties. Plaintiff has already been sanctioned for his vexatious conduct numerous times: he has been sanctioned $10,000 dollars; ordered to pay the brunt of attorney's fees in the Custody Action; disbarred; publicly rebuked; and had one of his federal complaints dismissed with prejudice. (Cohen Motion at 34); see also Zappin v. Cooper, 2022 WL 985634, at *10. While Plaintiff represented to Judge Ramos that “he had no plans for future litigation in this Court” and “no intention of filing any new lawsuits,” Plaintiff has since filed at least two new federal suits relating to the Custody Action. Id. at *10. Despite the efforts of multiple judicial institutions to deter Plaintiff from misconduct, he persists in his campaign of retaliation against the actors in the Custody Action and against the courts presiding over his complaints. Indeed, after Judge Ramos issued his filing injunction, Plaintiff filed a motion of recusal against him. Motion for Recusal, Zappin v. Cooper, No. 20cv2669 (ER) (S.D.N.Y. 2022), ECF No. 124). Moreover, as Cohen points out, since Plaintiff continues to pursue in forma pauperis status, he likely does not have the resources to pay a monetary sanction, and has already demonstrated that monetary sanctions do not deter him from initiating duplicative proceedings. See Safir, 792 F.2d at 25 (holding anti-filing injunction was justified where previous costs and fees already assessed against plaintiff remained unpaid, indicating that other types of sanctions would be unavailing). Accordingly, it is apparent that no sanction other than a pre-filing injunction would 52 be sufficient to deter Plaintiff from engaging in further vexatious, harassing, and duplicative litigation.
There is ample authority to support a filing injunction barring new actions related to previously litigated proceedings, without regard to the defendants' identity. Therefore, I find that Plaintiff's “years-long history of filing suit again and again against the same set of actors for the same series of events-and, in so doing, displaying little respect for courts and their orders and deadlines-counsels in favor of a filing injunction.” Zappin v. Cooper, 2022 WL 985634, at *8. I recommend that the Court GRANT Cohen's request to issue a pre-filing injunction preventing Plaintiff from filing further actions flowing from the Custody Action and the Disciplinary and Fee Proceedings, including any actions collaterally attacking the Decisions rendered in those Proceedings, without prior court approval.
See, e.g., Vassel v. Firststorm Properties. 2 LLC, 750 Fed.Appx. 50, 52-53 (2d Cir. 2018) (affirming filing injunction and finding that an injunction prohibiting plaintiff from filing certain lawsuits without leave of court was appropriate); George v. New York State Div. of Parole, 685 Fed.Appx. 30, 31 (2d Cir. 2017) (affirming district court's entry of a filing injunction prohibiting petitioner from filing future motions in his habeas action without leave of court, after the petitioner filed five duplicative motions); Brady v. Goldman, 714 Fed.Appx. 63, 64-65 (2d Cir. 2018) (affirming district court's entry of a filing injunction barring plaintiff from filing without leave of court any case arising out of the same underlying facts); Vidurek v. Koskinen, 789 Fed.Appx. 889, 895 (2d Cir. 2019) (finding no abuse of discretion in district court's entry of a filing injunction, even where plaintiffs were pro se); Ranasinghe, 2017 WL 384357, at *5 (barring plaintiff from filing “future actions relating to, or arising from” issues connected to his prior lawsuit “against any party and in any court”), aff'd, 718 Fed.Appx. 82 (2d Cir. 2018).
V. Conclusion
Based on the foregoing, I recommend that Plaintiff's TAC be dismissed in its entirety for a lack of subject matter recommendation under the domestic relations exception to diversity jurisdiction and the Rooker-Feldman doctrine. In the alternative, I recommend that that TAC be dismissed for failure to state a claim under Rule 12(b)(6). I also recommend that the Court 53 GRANT Cohen's request to issue a pre-filing injunction preventing Plaintiff from filing further actions flowing from the Custody Action and the Disciplinary and Fee Proceedings, including any actions collaterally attacking the Decisions rendered in those Proceedings, without prior court approval.
VI. Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (including weekends and holidays) from service of this Report to file written objections. See also Fed. R. Civ. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Andrew L. Carter, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Carter.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)). 54