03 Civ. 7118 (GEL) (AJP).
August 17, 2004
REPORT AND RECOMMENDATION
Plaintiff Abraham Friedman brought this action against, inter alia, various judges of this Court and the Court of International Trade, and against current or former government attorneys. (Dkt. No. 6: Am. Compl.) The amended complaint arises from Friedman's loss of his business in Mexico and the failure of the judicial system to help him. (See generally Am. Compl.)
This Court previously sua sponte dismissed the action against the judicial defendants on the basis of absolute immunity. (Dkt. Nos. 9-10, 12: 1/28/04 2/20/04 7/15/04 Orders.) Presently before the Court is defendants' motion to dismiss plaintiff's case as against the remaining, government-counsel defendants, on various grounds. (Dkt. Nos. 22, 24-25.) The Court need reach only one of those grounds — Friedman's current suit is barred by an injunction entered by Judge Swain in a related case, enjoining Friedman from bringing further lawsuits relating to his failed business endeavors in Mexico.
On December 1, 2003, Judge Swain dismissed plaintiff Abraham Friedman's complaint in 01 Civ. 7518, which asserted claims similar or identical to his current amended complaint (Dkt. No. 6). See Friedman v. United States, 01 Civ. 7518, 2003 WL 22846039 (S.D.N.Y. Dec. 1, 2003) (Swain, D.J.). As part of her decision, Judge Swain ordered that Friedman "is permanently enjoined from litigating further any claims relating to the alleged slip-and-fall incident and his failed business endeavors in Mexico, as well as any claims concerning any alleged attempts unlawfully to prevent [Friedman] from litigating such claims."Friedman v. United States, 2003 WL 22846039 at *5. Judge Swain further certified that "any appeal from this order would not be taken in good faith." Id. at *6. Friedman appealed to the Second Circuit. (01 Civ. 7518, Dkt. No. 35: Friedman 1/7/04 Notice of Appeal.) Friedman did not appeal the filing injunction to the Second Circuit; the claims that he did raise on appeal were denied and the appeal was dismissed "because it lacks an arguable basis in fact or in law." (04-0532-CV: 8/3/04 2d Cir. Order.) Friedman filed his amended complaint in this action January 7, 2004, the same day that he appealed Judge Swain's decision to the Second Circuit.
It is not, of course, this Court's function to sit in review of Judge Swain's anti-filing injunction. This Report and Recommendation could end here. Nevertheless, for the benefit of pro se plaintiff Friedman, the Court notes that Judge Swain was well within her authority to enjoin Friedman from further litigating any claims relating to his Mexico business endeavors or any claims concerning alleged attempts to prevent him from litigating these claims. See Safir v. United States Lines, Inc., 792 F.2d 19, 23 (2d Cir. 1986) ("That the district court possessed the authority to enjoin [Plaintiff] from further vexatious litigation is beyond peradventure.), cert. denied, 479 U.S. 1099, 102 S.Ct. 1323 (1987); see also Vasile v.Dean Witter Reynolds, Inc., No. 99-7297, 205 F.3d 1327 (table), 2000 WL 236473 at *2 (2d Cir. Feb. 14, 2000) ("Vasile has commenced numerous proceedings in the state courts, district court, and this Court in an attempt to locate assets that he claims were embezzled. He has now expanded his campaign to include a number of other government a non-government agencies. Vasile has been sanctioned in this Court and ordered to pay attorney's fees and costs in many of his actions. Vasile also has been enjoined from filing further actions and even incarcerated for contempt, yet he continues to file frivolous actions in various courts and other forums. The amended injunction became essential to preserve the status quo in light of Vasile's continued harassment. The district court's amendment and expansion of the original injunction was fully justified and is hereby affirmed."); Malley v. New York City Bd. of Educ., 112 F.3d 69, 69 (2d Cir. 1997) ("Malley has amply demonstrated that neither the lack of success of his actions nor the warnings of the district court will cause him to cease his abuse of the judicial process. We therefore affirm the injunction [from filing future complaints] as granted."); Manwani v. Brunelle, No. 95-6080, 99 F.3d 400 (table), 1995 WL 732686 at *2 (2d Cir. Dec. 8, 1995) ("[P]laintiff has provided no reasonable explanation of how his present claims against the private parties differ from those he has previously asserted. The instant action simply seeks to avoid the district court's previous orders by filing a fresh complaint. The district court awarded Rule 11 sanctions only as to attorneys' fees and costs that occurred after Manwani threatened to relitigate his old claims. Despite Manwani's pro se status, given his history of frivolous and vexatious litigation, we cannot say that the district court abused its discretion in dismissing the lawsuit and awarding these sanctions. The district court also did not abuse its discretion in restricting Manwani's future access to the courts regarding this matter."), cert. denied, 521 U.S. 1108, 117 S.Ct. 2488 (1997); Lacy v. Principi, 317 F. Supp.2d 444, 449 (S.D.N.Y. 2004) ("When a plaintiff files repeated lawsuits involving the same nucleus of operative facts, a district court has the inherent power to enjoin him from filing vexatious lawsuits in the future."); Fitzgerald v. Field, 99 Civ. 3406, 1999 WL 1021568 at *5 (S.D.N.Y. Nov. 9, 1999) ("A district court has the authority to enjoin a plaintiff who engages in a pattern of vexatious litigation from continuing to do so."), aff'd, 216 F.3d 1072 (2d Cir. 2000) (table).
Friedman filed an appeal in the Second Circuit, and it was inappropriate for him to file yet another suit in this District while that appeal was pending. See, e.g, Lacy v.Principi, 317 F. Supp.2d at 449 ("[P]laintiff has had his day in court and the issues he seeks to litigate were decided against him. Rather than appealing the dismissal he suffered in Lacy I, plaintiff has commenced three separate lawsuits in federal district court essentially seeking a reversal of Judge Batts's initial dismissal. Although he appealed Judge McKenna's grant of summary judgment, he filed this lawsuit while that appeal was pending. The tenor of plaintiff's submissions to this Court also indicates that he has no intention of abandoning his crusade against his former employer; it appears that he feels that he has been grievously wronged and will not stop filing lawsuits until he either finds a judge who agrees with him or is otherwise restrained from doing so.").
In fact, by filing the current action, Friedman has violated a court order and could be held in contempt. See, e.g., Sassower v. Sheriff of Westchester County, 824 F.2d 184, 186 (2d Cir. 1987) (Plaintiff "had been held in criminal contempt four times and in civil contempt twice for violating state and federal orders enjoining him from filing actions related to the judicial dissolution of Puccini . . ."); Klapper v. Verizon Communications, Inc., 02 Civ. 3262, 2002 WL 1580019 at *1 (S.D.N.Y. July 16, 2002) (Granting defendants' motions to hold plaintiffs in contempt for repeated violations of court order enjoining plaintiff from instituting any further actions.),aff'd in part, appeal dismissed in part, No. 02-9071, 70 Fed. Appx. 44, 2003 WL 21728980 (2d Cir. July 24, 2003); Page v.Shubert Org., 93 Civ. 6366, 1993 WL 541660 at *1 (S.D.N.Y. Dec. 23, 1993) ("[T]he plaintiff and plaintiff's counsel are enjoined from conducting any further litigation of the issues determined by Judge Stanton . . . Any violation of this order will lead to sanctions for contempt of court."); Sharma v. Duracell, Inc., 776 F. Supp. 168, 170 (Plaintiff is "enjoined from filing any further action or actions in this court against defendants arising from or having their genesis in the basic fact situation litigated and determined in this court. . . . Should a showing be made that [plaintiff] has violated this order, a defendant or defendants may apply to this court for a finding of criminal contempt against him.").
Accordingly, I recommend that the Court dismiss Friedman's complaint in its entirety. I also recommend to Judge Lynch that the Clerk's Office be instructed about the non-filing injunction against Friedman and reminded not to accept any future lawsuits by Friedman arising out of the same subject matter as his prior suits.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Gerard E. Lynch, 500 Pearl Street, Room 803, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Lynch. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 So. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).